Committees involved in this Bill

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

First meeting transcript

The Convener

Agenda item 4 is a briefing from Scottish Government officials on the Children and Young People (Information Sharing) (Scotland) Bill. I welcome to the meeting Ellen Birt, who is the bill team leader, and John Paterson, who is a divisional solicitor. This is our first meeting on the bill, so I invite the officials to brief the committee on its detail, its financial implications and its delegated powers.

Ellen Birt (Scottish Government)

I am happy to do that. My intention is to provide a bit of background to the bill and an explanation of what its provisions will do. I will also address the financial memorandum and delegated powers within the bill, which the convener has just mentioned.

The Children and Young People (Scotland) Act 2014 provides the statutory underpinning for the getting it right for every child approach, which is our national approach to improving outcomes and supporting the wellbeing of children and young people by offering the right help at the right time and from the right people. The named person service and the child’s plan are central to the approach; they put the wellbeing of every child and young person at the centre and ensure that services work together to support children, young people and their families.

The policy was developed in response to real-life experiences and expert advice that a timely and early offer of advice or help can prevent troubles from becoming crises. It was developed in response to parents asking for a clear point of contact for children, young people and their parents, should they be seeking support, information or advice.

The Scottish Government is committed to ensuring that all children and young people have access to the same standard of support, irrespective of where they live, and it remains committed to provision of a universal named person service for all children and young people up to the age of 18. It is against that backdrop that the 2014 bill was passed.

As members know, the 2014 act was, in the case of the Christian Institute and Others v the Lord Advocate, challenged as being outside the Scottish Parliament’s legislative competence. The grounds for challenge were that part 4 of the act, which relates to the named person service, related to reserved matters and that it was incompatible with the European convention on human rights and European Union law.

In July 2016, the Supreme Court gave its decision. It dismissed the challenges on reserved matters and EU law. On the human rights challenge, the Supreme Court found that the provision of a named person service was

“unquestionably legitimate and benign”.

However, it went on to find that the information-sharing provisions in part 4 were not in accordance with the law. In brief, that was because of the very serious difficulties in accessing the relevant legal rules and a lack of safeguards that would enable the proportionality of an interference with article 8 rights to be examined.

What has happened since the Supreme Court case? The Scottish Government held an intense period of extensive engagement between September and December 2016. It included more than 50 meetings with about 250 organisations and groups. We heard from about 700 young people, parents and carers, practitioners, professionals and leaders from education, health, local authorities, the police, faith communities, unions and charities. Through that engagement, we also listened to those who had raised concerns about the named person policy, including Christian Action Research and Education for Scotland, Clan Childlaw, Together and the Scottish Parent Teacher Council, among others.

The bill seeks to address the points that were raised by the Supreme Court and to ensure that decisions around sharing of information are taken in partnership with children and young people and their parents. That is something that children and young people, parents and practitioners expressed was a key issue for them, and it is core to the getting it right for every child approach. The bill will make changes to parts 4 and 5 of the 2014 act, which relate to the named person service and the child’s plan. The changes that the bill will make relate to information sharing only. It seeks to clarify the provisions around information sharing and to ensure that proper safeguards are in place.

In relation to part 4 of the act, on the named person service, the bill will substitute a new section 26 and insert a new section 26A. Those sections relate to the provision of information by or to a named person service provider. The previous duty to share information under the 2014 act will be removed and replaced with a new duty to consider sharing information. First, the named person or other information holder who is seeking to share information with the named person service provider must consider whether providing the information

“could, in its opinion, promote, support or safeguard the wellbeing of the child”.

Secondly, the provider will have to consider whether the relevant information could be shared in accordance with the law. That includes data protection law, human rights law and the law of confidentiality.

Thirdly, the bill provides a power to share information. That means that there will no longer be a duty to share information, but named persons and others who seek to share information with the named person will be able to continue to exercise their professional discretion.

Section 1 of the bill will amend section 23 of the 2014 act, on communication in relation to the movement of children and young people. The changes, which are similar to those that I have just set out, will ensure that information may be shared where that

“could ... promote, support or safeguard the wellbeing of the child or young person.”

There is also similar provision making it clear that information can be shared only where that is in accordance with the law, which includes data protection law, human rights law and the law of confidentiality.

The proposed new section 26A makes it clear that information cannot be shared under part 4 unless the Data Protection Act 1998 and other relevant law can be complied with. It also ensures that information cannot be shared where that

“would prejudice the conduct of a criminal investigation or the prosecution of any offence.”

With regard to delegated powers, the bill will introduce a new section 26B into the 2014 act, which will place a duty on ministers to issue a code of practice about the provision of information under part 4, which means by or with named person service providers. The bill provides for the code to be binding and states that it

“must ... provide for safeguards applicable to the”

sharing of information. The bill sets out the procedure that must be followed before issuing a code of practice, which is akin to affirmative procedure. It places obligations on ministers to consult relevant persons, to lay a draft before the Parliament for 40 days and to take account of any views expressed by the Parliament.

Although the Supreme Court focused on part 4 of the act, in relation to the named persons service, the bill will make similar changes to the information-sharing provisions in part 5 of the 2014 act, which relates to child’s plans. In particular, it will bring those provisions into alignment with the new provisions on information sharing under part 4, thereby making clear that information can be shared only where that is in compliance with the law and where it would not

“prejudice the conduct of a criminal investigation or the prosecution of any offence.”

Proposed new section 40B will place a duty on ministers to issue a code of practice in relation to the sharing of information under part 5, in the same way that proposed new section 26B will in respect of the named person service. The committee has been provided with an illustrative draft code of practice. That is intended to assist the committee in understating how the power to issue a code of practice could be used. It is intended to be an illustration only and shows how a code of practice could provide for additional safeguards in relation to information sharing. As it is an illustration, it was drafted with regard to the law as it presently applies. The illustrative code is set out in two parts: the first concerns safeguards and the second is a description of the relevant law. Those are both aspects on which the Supreme Court focused.

The code sets out the steps that the named person service provider, or the relevant authority seeking to share information with a named person, must follow in order for the information sharing to be in compliance with the law. It sets out the responsibilities to inform the person to whom the information relates and the need to seek consent, which will be applicable in most circumstances. Practically, that is likely to be the consent of the child or young person or their parents. It sets out the responsibilities that apply in the limited circumstances where the law permits consent not to be required, including steps to inform persons affected before or after sharing. Importantly, the code does not change the law on data sharing or human rights, but sets out the safeguards that must be followed to ensure that information sharing is in compliance with the law. The code also contains requirements to records decisions, which is an important part of good decision making.

The second part of the code provides a description of the relevant law. Again that is because of the importance that the Supreme Court placed on the matter in its decision. As I said, the draft that has been published is for illustrative purposes only: any code of practice will be subject to consultation and the procedure that is set out in the bill.

Before taking questions, I will address the financial memorandum. The Scottish Government has supported local implementation of the getting it right for every child approach by providing £10.2 million to local authorities to prepare for the commencement of parts 4 and 5 of the 2014 act. Prior to the planned implementation date of August 2016, local authorities, health boards, Police Scotland and other organisations had confirmed that they were ready and prepared to be compliant with those parts of the 2014 act on commencement.

The financial memorandum sets out the additional costs of £1.2 million that will be required to develop training and learning materials to support national consistency and to backfill for staff who are undergoing training on the new duties on information sharing only, which are set out in the bill.

The financial memorandum is based on the same modelling that was agreed with stakeholders and Parliament during the passage of the 2014 act. The expectation is that that training will complement and become part of the regular supervision and continuous professional development requirements that professionals undertaking the named person and child’s plans responsibilities already undertake. That will be supported by revised statutory guidance under the 2014 act, and by information and practice materials that the GIRFEC policy team will be developing in collaboration with children, young people and practitioners in advance of implementation.

I hope that that summary has been of assistance to the committee. My colleague and I are happy to answer any questions.

The Convener

I might ask some questions later, but I will first let Liz Smith ask her questions.

Liz Smith

Thank you for the information that you have provided us with.

During the passage of the Children and Young People (Scotland) Bill several years ago, one of the concerns that was expressed by witnesses—specifically the Faculty of Advocates, Clan Childlaw and Professor Norrie, who gave a legal interpretation of some aspects in order to assist the committee—was that there had not been sufficient consultation on the implications of data sharing and on some of the legal implications of specific terms, which I will come to in a minute. What consultation on those specific issues have you had in preparation for the bill? In particular, what consultation have you had with the Information Commissioner’s Office?

10:15

Ellen Birt

As officials, we have been engaging very closely with the Information Commissioner’s Office. As I said, there was an intensive three-month period of engagement on the back of the Supreme Court decision, during which we sought to look critically at the issues that that decision raised and at how best we could move forward to ensure that the objective of a named person service could be fulfilled, because we know that practitioners and parents have told us that when the getting it right for every child approach is working, it supports them.

Recently, following that period of intensive engagement, we have continued to work through our close stakeholder groups. We have a national implementation group and a GIRFEC lead officers group, with which we have discussed the intricacies of the plans that the Government intends to implement. In the past few weeks, we have again met the Information Commissioner’s Office. The bill and the illustrative draft code of practice that is before the committee have both been drafted to be cognisant of the fact that the general data protection regulation is on the horizon. The way in which the bill is set out allows us to be responsive to that changing landscape and to ensure that, when additional safeguards and explanation are required once the position of the United Kingdom Government on the general data protection regulation is clear, we will be able to provide those through the procedure on the code of practice that I set out.

Liz Smith

Thank you for that.

On a technical level, are you confident that your advice to ministers about the legal definitions in the bill, and the advice on the legal interpretation that has been provided by the Information Commissioner’s Office, are clear?

Ellen Birt

I will defer to my legal colleague on that.

John Paterson (Scottish Government)

The answer to the question is yes.

I will pick up on Ellen Birt’s answer. In addition to the consultation that took place prior to the draft code of practice being published, there is a proposed requirement for the Scottish ministers to consult. I envisage that that consultation would include relevant bodies such as the Information Commissioner’s Office.

Rather than providing a power for ministers to issue a code of practice, the bill makes it a requirement for them to do so. The consultation that would take place prior to the code being issued forms part of the scheme that is proposed under the bill.

Liz Smith

I will make two technical points. The Faculty of Advocates notes that a section in the draft code of practice relates to the law of confidentiality, which is said to derive from common law. The Faculty of Advocates understands that the Scottish Government’s interpretation of the law of confidentiality is that it is a common law. In its submission, it says:

“It is not clear to what this section refers.”

Could you help us out with that?

John Paterson

From the Scottish Government’s perspective, the law of confidentiality is a common law that applies in relation to the provision of information that has the quality of confidentiality. Reference to various legal texts will illustrate that that duty exists.

I think that it is correct that the submission from the Faculty of Advocates says that the duty exists only in relation to certain people in certain circumstances. The submission refers to the circumstances of doctors and lawyers. However, the Scottish Government’s position is that the duty extends more widely than merely to doctors and lawyers and, in its submission, the Law Society of Scotland recognises what one might describe as a law of confidentiality.

Liz Smith

That is helpful up to a point, but the Faculty of Advocates is asking which section of the bill the duty refers to. I take on board what Ms Birt said. If the bill is to work well, there must be an understanding among named persons and people who are going to implement the law that they must decide when to share relevant information—that is the change. Do you agree that, if they are not clear about specific definitions, the Government should be advised to tighten that up?

Ellen Birt

Perhaps I can be of assistance. It is important to highlight that the bill will not change the law on confidentiality and data sharing or human rights law. Public authorities across Scotland already have to comply with those laws and already grapple with issues such as data sharing. The bill clarifies, on the back of the Supreme Court’s decision, the interaction between what the amended 2014 act will be and the law as it stands.

Liz Smith

I accept that. I am sorry to labour the point, but that is not what the Faculty of Advocates says. It says that it is not clear which section of the bill the law of confidentiality refers to. That is the point.

John Paterson

The law of confidentiality applies generally to all powers—

Liz Smith

To all of the bill?

Ellen Birt

It applies to parts 4 and 5.

John Paterson

It applies to any sharing of any information. The question is whether the information in question has the quality of being confidential. For example, this exchange is not confidential, as it is taking place in public. On the other hand, an exchange that I have with a minister in relation to legal advice may well have the quality of confidentiality. If I were a solicitor in private practice and provided legal advice, that advice would also possess that quality.

The Convener

Is the Faculty of Advocates looking for something that would normally not be required because the confidentiality, as you say, holds across the piece?

John Paterson

My understanding is that the Faculty of Advocates recognises that there is a duty of confidentiality in certain circumstances—for example, between a doctor and a patient—but does not recognise a broader law of confidentiality. The Scottish Government’s position is that there is a broader law of confidentiality, of which the duty between a doctor and a patient is a part.

The Convener

And that view is supported by the Law Society.

John Paterson

That view is supported by the Law Society.

Liz Smith

Forgive me, but I wish to return to the nub of the issue. When the previous bill was before Parliament, there was controversy—irrespective of people’s views on named persons; this is not to do with that debate—around the accuracy and clarity of the law specifically in the bill, and that is what is going to matter. We have received a number of submissions from people who are supportive of the policy but who are concerned that they do not have clarity of specific legal meaning. We did not have that the last time, and that gave rise to concerns about inaccurate scrutiny of the bill. I suspect that that is one of the reasons why we ended up with such a difficult issue.

The Convener

Stick to the point, please.

Liz Smith

It is a technical point. I am asking whether we now have that understanding and clarity about these specific legal issues. Wellbeing is currently defined by the SHANARRI—safe, healthy, achieving, nurtured, active, respected, responsible and included—indicators. Has there been any discussion at a technical level about whether that is an adequate definition of wellbeing, given that concern about that was raised by the Supreme Court?

Ellen Birt

I will start by dealing with your first point, to wrap up the discussion that we were having. You asked about what the Faculty of Advocates said when it asked which provision or section of the 2014 act the law of confidentiality applies to. The bill simplifies the relationship between what will be an amended 2014 act and the law. One of the concerns that the Supreme Court raised was how a duty to share information—a duty that did not carry any professional discretion—sat alongside the requirements of data protection law, human rights law and the law of confidentiality. The bill now removes that tension; there is no longer a requirement to share information. The bill creates a legal prompt for named person service providers and others seeking to share information with them to consider whether sharing that information would support, promote or safeguard the wellbeing needs of a child, and then gives them the power to share it. The law of confidentiality, data protection law and human rights law will apply to all of that decision-making process.

In relation to your point about the definition of wellbeing, it is again important to recognise that the 2014 act is setting up a named person service that provides help to children and young people and their families when they need it, in order to prevent low-level issues from escalating and turning into bigger problems. By their very nature, the wellbeing needs of children will be as different as the number of children. That concept has been well utilised and understood among practitioners, families and children who are using the indicators now. The 2014 act put those wellbeing indicators on a legislative footing for the first time. It is important to read the indicators with reference to the wider statutory guidance and practice materials that have been developed and will be redeveloped in relation to the bill. The Government’s position is that for wellbeing, unlike welfare concerns, there is not a threshold that children have to meet.

Liz Smith

Indeed. Thank you.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

I have just a couple of questions. The Scottish Public Services Ombudsman considered that there was quite an overlap. Has that been taken into account? Is it going to be adjusted?

Ellen Birt

An overlap in what respect?

Colin Beattie

I am quoting from the papers that I have here. The SPSO sees an overlap between the complaints process and the

“existing jurisdiction for complaints. They suggest that the bill is amended to remove this duplication.”

Ellen Birt

I am familiar with the SPSO submission. Thank you for that clarification. The bill relates to the information-sharing provisions in parts 4 and 5 of the 2014 act. There is a complaints procedure set out in the act, which was agreed upon and passed by the Parliament. My colleague can correct me if necessary, but my understanding is that there is a requirement for secondary legislation in relation to that complaints procedure. That will be developed ahead of implementation, so the Parliament will have an opportunity to consider it before full implementation of parts 4 and 5.

Colin Beattie

There seems to be an awful lot more detail laying down who is responsible for what this time around. Has it been found necessary to include that?

Ellen Birt

In developing the Government’s proposal we have listened carefully to the concerns that were raised by the Supreme Court and to those that arose through the intensive engagement that we had with families and practitioners. As we know from the Supreme Court judgment, the issue of clarity is extremely important, so the bill and illustrative code seek to make very clear the steps that a named person service provider or person seeking to share information with them has to go through in order to fulfil their responsibilities and to be compliant with the law.

10:30

Colin Beattie

As a result of the court’s judgment, has it been necessary to extend the requirements as to who does what?

Ellen Birt

I am not sure that the bill extends the requirements of who does what, but the bill makes that clearer, which has been our intention.

Daniel Johnson (Edinburgh Southern) (Lab)

As you have set out, one of the principal changes from the bill is a move from there being a duty to share information to a situation in which professionals must consider and make a judgment that balances the sharing of information to promote wellbeing against relevant laws, particularly on data protection. What consideration was given to what that will do to the role of professionals and, in particular, to the capacity and capability that those professionals have to make that judgment as part of their work?

Ellen Birt

I point to the fact that the people with those responsibilities are professionals; they are the teachers, health workers and others who are already engaged with children and families. The intention behind the named person service was that families, children and young people would have a single point of contact who they were already familiar with.

As I said before, the law that the bill requires compliance with is the law that already applies. When considering whether sharing information could promote, support or safeguard the wellbeing needs of a child, the duty under the Data Protection Act 1998 in the vast majority of circumstances is that that is done with the consent of the child or their familiy. Those wellbeing needs would be discussed with the family, and any intervention or proposed move forward would also be discussed with the family.

Daniel Johnson

I accept that that is the situation for the majority of cases, but where it becomes controversial is in the extremes. You are right—we are talking about professionals who are trained, but they are trained in healthcare or education, and not the law. Was any work carried out to look at their capacity—their ability to carry out the work—and capability to undertake those judgments? What new implications will the change have for those professionals?

Ellen Birt

During the passage of the Children and Young People (Scotland) Bill and the current bill, we have engaged extensively with education and health stakeholders in relation to the impact that the approach will have on the workforce. We also have a national implementation support group that includes professionals from local authorities and the health sector, and we continue to engage closely with health boards, unions and representatives of the teaching workforce.

In relation to difficult or extreme cases, it is important to underline that the bill and the 2014 act do not in any way alter current child protection mechanisms. The law is clear on what professionals must do when there is a significant risk of harm, and professionals who work in an education or healthcare setting are familiar with that.

It is also important to highlight that the expectation is that front-line workers will not be left on their own to scrutinise the legislation. As always, we will work closely with partners in health and education to make sure that effective, good-quality and accessible training and development materials are available for front-line practitioners—and, importantly, for families, children and young people themselves—and that training on the responsibilities that are placed on those individuals will form part of their regular CPD and supervision.

Daniel Johnson

Part of the Supreme Court judgment explicitly stated that the court remained concerned that it was an exceptionally difficult requirement to impose on professionals in respect of every child and that, furthermore, the imposition risks making professionals’ jobs considerably more difficult and undermining the trust of families. Given that that was part of the Supreme Court judgment, what is there in the amended legislation that mitigates the points that were raised by the Supreme Court?

Ellen Birt

The Supreme Court obviously considered the previous framework that was in place under the 2014 act and the provisions that had not been commenced. It considered the tension that arose between the duty that the 2014 act placed on the named person service providers, or on a person sharing information with them, to share information, and the further requirements and responsibilities that were on them under the wider law, including human rights law, data protection law and the law of confidentiality. The new bill clarifies that position by making it clear that there is no duty to share information but that there is a duty to consider whether sharing information could benefit the wellbeing of a child, and that there is a power to do so where that professional believes that it could be of benefit to wellbeing. Crucially, the bill says that that information can be shared only where doing so would be in compliance with the law as it stands.

Daniel Johnson

Some concern has been raised that that may well lead to defensive behaviour in the way in which those judgments will be applied. What kind of considerations were made from a behavioural standpoint when the amended legislation was drafted?

Ellen Birt

As the Deputy First Minister has said in his previous statements to Parliament and to the committee, it is the Government’s responsibility to ensure that we build trust and confidence in the named person service and child’s plans provisions. As I have said before, it is our intention to work in conjunction with those professionals who will be delivering those responsibilities, and with children and families, in order to increase their understanding and to build that trust and confidence. The process that we are involved in now in scrutinising the bill is part of that.

The Convener

There is a brief supplementary from Johann Lamont.

Johann Lamont (Glasgow) (Lab)

My question is on a specific point. You said on the question of consent that it would be with the consent of the child or the family, and then you spoke about working with the family. Do you accept that there is sometimes a conflict between the two? How would that be resolved?

Ellen Birt

Yes, I accept that, and that is a conflict that arises now. The illustrative code of practice that is in front of the committee sets out the responsibilities that already apply in relation to capacity. We would expect that the professionals working with children and families would be looking to achieve the best outcome for them. I defer to my colleague on the technical legal point about—

Johann Lamont

It is not a technical question. It a question of whether, if it is possible to get the consent of a child to share information, you then have to speak to the family or not. Secondly, what evidence would a worker have to provide to show that they had considered the question of whether to share information? They have a duty to consider it, but how is it established whether that duty has been carried out?

Ellen Birt

I can ask my colleague to address the specific point about the law.

John Paterson

Paragraph 5 of the illustrative draft code makes reference to the position under the Data Protection Act 1998, which is that a child who is 12 years of age or older is

“presumed to be of sufficient age and maturity”

to have understanding in order to be able to give consent themselves. That would be the starting point for any person who is considering whether to seek the—

Johann Lamont

The technical point is whether, if a child under 12 has given information to somebody about what is happening to them in their own circumstances and what they said was about the family, and that person thought that they should share that information with other agencies, that person would have to seek the family’s consent. Technically, if the child is under 12, they would not be deemed to have given consent. The family would have to be spoken to about something that the child said about them.

John Paterson

Although the presumption that a person under 12 has sufficient age and maturity in order to be able to give consent will not apply, one could still conclude that a particular child under the age of 12 has sufficient maturity and understanding to give consent. If the person concluded that a child of five does not have sufficient maturity and understanding, the question would be whether it was necessary not to seek consent because the particular issue related to the mother and father, for example. If the person concluded that it was necessary not to seek consent in order to protect the child’s interests, it would be open to them to do that. The likelihood is that they would be required to do that in order to fulfil their duties.

The Convener

Is it not the case that that happens just now?

John Paterson

Exactly.

Ellen Birt

Yes.

The Convener

So in respect of the bill, it is irrelevant that the same sort of safeguards and procedures would be in place to ensure that the information that was required to protect somebody under 12 was in place.

Johann Lamont

So the concerns that maybe prompted some of the legislation are not being addressed, as that is where we already are just now.

The Convener

No, that is not the case at all. I am sorry, but we will move on to Ross Greer.

Ross Greer (West Scotland) (Green)

We have touched on this issue, but I am looking for further clarity about the provisions on consent being in the code of practice rather than in the legislation. What makes you confident that you have met the requirements of the Supreme Court without putting those provisions directly into the bill?

Ellen Birt

The bill and the illustrative draft code of practice do not seek to change the law on consent. In the data protection legislation and human rights law, there are limited circumstances in which information can be shared without consent. The bill does not seek to create a new law on consent; it requires that, when information is to be shared, it can be shared only when that complies with the law.

The illustrative code of practice seeks to respond to what the Supreme Court said about safeguards and to ensure that we do not leave the interpretation of the law as it stands just to the named person service providers. There will be a binding code of practice that sets out the steps that a service provider or others who seek to share information with them will have to go through to demonstrate that they comply with the law on data protection and therefore the law on consent.

Ross Greer

Thank you. Much of what I wanted to ask about has been covered.

Oliver Mundell

I would like to take the issue a little further and explore the decision not to put the safeguarding guidance into primary legislation. The delegated powers memorandum says that it would be impractical to do that. How far was that issue explored before you reached that conclusion?

Ellen Birt

By its nature, primary legislation has to be precise and technical. In considering the options that the Government might take, we were clear about the requirement to respond to the Supreme Court’s concerns about safeguards and to ensure that clear and accessible guidance was available to practitioners who undertake the responsibilities.

10:45

The intention behind providing the committee with an illustration of what the code might look like is to demonstrate how the additional contextual information that is required to put the safeguards in place has a different nature from the provisions in the bill. The bill provides for the code of practice to be binding—it is not optional. It is not statutory guidance to which professionals will be required only to have regard; they will be required to comply with the steps that are set out in any code of practice. The approach that the Government set out was what we determined was the best way to balance what we heard from the Supreme Court about providing clarity on the relationship between the 2014 act and the law as it stands with providing detail on safeguards and the relevant law.

Oliver Mundell

I appreciate that it might be difficult to put all the guidance into primary legislation, but was any consideration given to creating a hybrid, in effect, to enshrine some of the guiding principles in the legislation?

Ellen Birt

As I said, we carefully considered the points that the Supreme Court raised and we used the intensive three-month period to listen to what professionals, families, and children and young people told us was important to them about the named person service and the getting it right for every child policy. The Government feels that the approach that is before the committee best addresses the Supreme Court’s concerns.

Oliver Mundell

Was any other drafting work done before that decision was taken or was the decision taken in principle because the issue was too difficult? Was the approach worked through to arrive at the conclusion?

Ellen Birt

As you would expect, we officials work through any issues in the drafting process. That is a normal part of the process before a bill is put before a committee.

Oliver Mundell

So although it was deemed difficult in practice to put the guidance into the legislation, it was not deemed legally impossible when the bill was drafted.

John Paterson

As Ellen Birt said, detailed consideration was given to exactly how to approach the matter. For example, people suggested that we should say up front in the bill that consent was required. Clearly, it would have been possible to do that, but it would have been possible only to say that consent was required except in certain circumstances. We would then have had to set out those circumstances much in the way that the code does, except that we would have had to do it with the level of precision that is required of primary legislation.

Oliver Mundell

So it is okay legally for guidance to be imprecise but primary legislation has to be precise. Is that right?

John Paterson

That is not quite what I am saying.

The Convener

You need to stick to the bill, Oliver. You are talking about drafting bills.

Oliver Mundell

I do not think that I am.

The Convener

You are. You are talking about how bills as a whole are drafted. Are you suggesting that everything should be in every bill?

Oliver Mundell

No—I am talking about what should be in the bill that is before us. Other committee members are about to come on to questions about whether what is in the bill is akin to affirmative procedure. I am trying to understand what was decided.

The Convener

I think that the witnesses have answered you about five times, but feel free to draw your questioning to a conclusion.

Oliver Mundell

What requirement is on the Government to take into account what the Parliament says and what is the legal standing of that? What does that mean in practice?

John Paterson

Really just what it says. If Parliament expresses a view on the draft code—I take it that we are talking about the draft code.

Oliver Mundell

Yes.

John Paterson

In producing a final version of the code, the Government is required to take into account any view from Parliament on the code.

Oliver Mundell

What does taking into account mean in practice? Does the Government have to listen to the Parliament? Does the Government just have to take the information on board? Is there no requirement or legal duty to take action as a result of any concerns that are expressed?

John Paterson

The legal duty is to take the view into account. If the Government failed to take it into account, it would fail in that legal duty.

Oliver Mundell

That would have to be challenged in the courts; it could not be challenged in the Parliament. Would the question just be the subject of a parliamentary debate?

John Paterson

All law is ultimately subject to interpretation and enforcement by the courts; the bill is no different from any other law in that respect.

If I may, I will go back to the point that you made about the code of practice. Although you mentioned guidance, it is not guidance but a code of practice that will be issued under proposed new sections 26B and 40B of the 2014 act. In paragraph 107 of its judgment, the Supreme Court recommended that as one of the possible ways in which to address the matter. In an earlier paragraph of its judgment, the court referred with approval to a code of practice in relation to policing. It is fair to say that that consideration by the Supreme Court influenced our thinking.

Johann Lamont

You have talked about an illustrative code of practice. Has such a document been produced for previous legislation in the Parliament?

Ellen Birt

Not to my understanding. John Paterson can correct me if I am wrong, but I think that there have been instances where, during the parliamentary process for bills, early drafts of subordinate legislation that bills will provide powers to produce have been provided to assist Parliament. Mr Swinney decided to provide an illustration this time in recognition of the significant interest that there has been in the matters concerned.

Johann Lamont

What is the document an illustration of?

Ellen Birt

It is an illustration of how the power that the bill sets out in relation to providing a code of practice could be used. However, it is important to recognise that, should the Parliament approve the provision in the bill that places ministers under an obligation to issue a code of practice, it is the procedure that is set out in the bill that would have to be complied with. The illustration is not intended to be the code of practice that would be in place when the provisions are implemented.

Johann Lamont

So the code of practice could be very different from the illustration, which gives us no guarantee that that is what the code could look like.

Ellen Birt

We cannot presume at this stage what the parliamentary view of the bill will be.

Johann Lamont

Do you accept technically that our view of the bill will in large part be shaped by what we think the capacity to deliver the bill’s intent through the code of practice is, so there is a gap? You seem to say that we can look at the bill in order to agree to it, but there will subsequently be a code of practice that might not be like the illustrative code of practice. The code of practice will therefore not have the same scrutiny as will apply to the bill that delivers the requirement to have the code.

Ellen Birt

The process that we are engaged in is scrutiny of the bill, in the normal way that legislation is scrutinised by the Parliament. It is not our submission that the illustrative code of practice is required in order for the Parliament to give its view on the bill.

Johann Lamont

Is it reasonable for the Parliament to expect the core bit of the bill, which is the delivery of the code of practice, to receive the same scrutiny as the bill receives? I might be missing something technical, but it feels as if the Parliament is being asked to confirm that we require the code of practice. That code could be very different from the illustration, but we will not have the same capacity to scrutinise it as we will have to scrutinise the bit of legislation that insists that it should come into being. Do you see that there is an issue of scrutiny and building confidence about the bill’s outcomes?

Ellen Birt

It will be for members to express their views about the proposal that the Government has put forward. The proposal in the bill is that ministers would require to publish a binding code of practice—under a procedure that requires consultation—and a draft code of practice would be laid before Parliament. We are in a process now in which the bill is being scrutinised.

Johann Lamont

For the sake of argument, let us say that I completely accept that there should be a code of practice. I might have concerns about the ability of the code that comes out at the end of the process to deliver on the bill’s intention, but I—and, more important, the committee—would not have the same opportunity to scrutinise that code as we will have to scrutinise the provision that requires the code to be issued. Should there not be clarity about that, particularly given the contention around the bill? Did you consider how you could build into the process parliamentary scrutiny of the code that is as full as the scrutiny of the bill itself?

Ellen Birt

As I said, we are in a process of scrutiny now.

Johann Lamont

With respect, we are scrutinising an illustrative code of practice, not the code of practice.

Ellen Birt

I meant that we are in the process of scrutinising the power.

The Convener

I seek clarification. If you had not given us the illustrative code of practice, what would you have given us in its place?

Ellen Birt

The Deputy First Minister decided to provide the committee and the public with an illustration of a code of practice on the basis that it would be of assistance. That was the decision that he took; that is what he felt would be most helpful.

The Convener

I accept that, but I am trying to get at what information, if that decision had not been made, would normally have come to us about the code of practice at this stage. Would we just have been told that we were going to have a code?

Ellen Birt

Normally, there would be discussion and information about how the Government intended to use the powers that the bill before the Parliament placed on ministers. Given the nature of the bill, the Deputy First Minister decided that it would assist the committee and the public in general to see what a code of practice might look like. That also assists us as Scottish Government officials. We hope that the debate about the illustrative draft that takes place through this parliamentary process—if we assume that, at the end of it, the Parliament will confer on ministers the responsibility to issue a code of practice—will help us to ensure that a draft that is later consulted on is cognisant of views that have already been shared.

The Convener

Let me clarify one other point on the illustrative code of practice. If, having looked at it, we think that there are two or three things wrong with it and we do not like the way it looks, and we feed that back to you, would that view affect what the code of practice would eventually look like? I know that you cannot speak for the minister, so that is an unfair question.

Ellen Birt

I underline the point that I made earlier. We, as the Government, cannot presume what powers or duties the Parliament will confer on ministers. As I said, the Deputy First Minister took the view that sharing an illustration of how the power that is set out in the bill could be used would be benefit parliamentary consideration of the bill.

Assuming that the provision that we are talking about is approved by Parliament, the procedure that is set out in the bill would have to be complied with. There will be a full and proper consultation of the relevant persons who will be affected, a requirement to lay a draft of the code of practice in front of the Parliament for 40 days and then a duty on ministers to consider any views that Parliament expresses.

11:00

Oliver Mundell

I am slightly struggling to follow that. Is it correct to say that the bill as introduced could have been introduced just the same, without any amendments, if no illustrative code of practice had been provided?

Ellen Birt

I am not sure that I understand what you mean when you ask whether it could have been introduced without amendments.

Oliver Mundell

Could the bill have been introduced as it is at the moment?

Ellen Birt

Yes. The normal process is that a bill is laid without supporting materials in the form of illustrations of how subordinate powers might be used.

Oliver Mundell

In this specific case, would the bill remain exactly the same, whether the code was there or not?

Ellen Birt

Yes. The provisions of the bill are not affected by the illustrative code of practice that has been provided for the committee.

Oliver Mundell

So that code has no legal standing in terms of the bill.

Ellen Birt

The illustrative code does not have any legal standing. If the powers or duties that are set out in the bill are duly conferred on ministers, there will be a requirement on them to issue a binding code of practice.

The Convener

I want to draw this to a close. We wrote to the cabinet secretary about it and he got back to us to say that he would provide an illustrative draft code of practice to accompany the bill just to show us how the powers might be operated once the bill has been passed. We are getting caught on something that was meant to be helpful—regardless of whether we find it so—when there are more important issues to discuss about the bill.

We will move on with Johann Lamont. Please do not go back to the code of practice.

Johann Lamont

No, I will not. We can raise that with the cabinet secretary himself.

I have a couple of final questions. Has there been a change in the policy intention in this area of work? I ask because what we are now seeing feels a very long way from the real world. The real world is not just about families who are seeking help; there are also families who resist seeking help and their children are vulnerable. Does the bill address that situation?

Secondly, we all know of stories in which the problem was that large numbers of people were engaged in a child’s life, but information was not shared or the story was not told and the child suffered, often with tragic consequences. There is no duty to share information, so you have still to tell me what it will look like for somebody to prove that they have considered sharing information. If people do not share information or say that they noticed this or that, we will be in the same place that we have been in with every tragic case. How will we address that if there is no duty to share information? I think that, in policy terms, the Government has moved back from that. How are we addressing the situation of vulnerable children being let down by a system that has not noticed the signs of vulnerability—which is, in my view, what prompted the legislation? How will the bill help? Am I right in saying that the policy intention has had to change?

Ellen Birt

Again, I refer to the previous statements that the Deputy First Minister has made: policy has not changed in relation to the GIRFEC approach, the named person service and child’s plans. The Supreme Court determined that that policy and the aims of the 2014 act are “legitimate and benign”, but it has required the Government to consider again how the information-sharing provisions will operate, and how we can provide clarity to ensure that information sharing happens in compliance with the law.

It is absolutely the intention that the named person service will seek to improve the position that we are in and, as Johann Lamont identified, that it will address the issues that we have heard about many times before with different services holding bits of information that could, had they been seen together, have told an important story.

That is why the requirement in the 2014 act for the provision of the universal service has not changed. The Government’s policy intention is that a named person service will be available for all children and young people in Scotland—there is obviously an exception in relation to the children of people who are in the armed forces—and the provisions in the bill will ensure that professionals working in that service understand and have clarity about the responsibilities that are being placed on them. The bill will, for the first time, place a duty on all named person service providers to have regard to the wellbeing needs of children. The evidence that the Care Inspectorate has submitted to the committee highlights that although good progress has been made over a number of years, there are still gaps and issues.

Johann Lamont

What evidence will they have to show that they have considered it?

Ellen Birt

That they have considered what?

Johann Lamont

You say that, rather than someone having a duty to share information, they have a duty to “consider” sharing it. What evidence must they show? If there is none, that does not feel very different from current practice.

Ellen Birt

Are you asking me what evidence people will be required to provide?

Johann Lamont

Yes.

Ellen Birt

The illustrative draft code of practice includes a requirement that professionals record their decision making. That is already a requirement of good decision making, but the binding nature of the code of practice will ensure that the named person service and the approach on child’s plans—

Johann Lamont

So people will have to record that they decided not to share information.

Ellen Birt

Yes—they will be required to do that.

Johann Lamont

I might be missing this completely, but what consideration has been given to the impact of the change in governance of schools on a local authority’s responsibility for children and the named person service? The list of who is responsible at different ages and stages says that the local authority has the responsibility, but I am sure that you accept that, under the governance proposals, many of the powers that local government has over schools will change. Has that been factored into the bill?

Ellen Birt

At official level—that is obviously the level that I represent today—we are working closely with our colleagues who have responsibility for delivering the Government’s policy objectives on school governance. The bill and the 2014 act do not change local authorities’ responsibilities. The duty to provide the named person service will still rest at local authority level.

Johann Lamont

That is despite the fact that more powers and autonomy are going to the headteachers in individual schools. Has there been any consideration of the shifting of that responsibility to schools and headteachers? Has there been a conversation about whether it would be a good idea?

Ellen Birt

As officials, we have been having discussions about the impact of our respective policies on each other, as you would expect us to do, but the Government’s policy intention has not changed.

The Convener

That is clearly an issue that Johann Lamont will raise with the cabinet secretary when he comes here.

Ellen Birt

Yes. Thank you.

Liz Smith

I have a question about the financial memorandum. You referred to it earlier when you said that you have to be satisfied that there are sufficient resources and money available to ensure that the people who deliver the named person service are professionally competent. What plans do you have for that on an on-going basis? What costs do you think will accrue as a result of the policy? As I understand it, those professionals will now have to make a judgment about whether to share information, rather than having a duty to do so put upon them. To make that judgment, they will have to have knowledge of the law and be very competent in weighing up, under the wellbeing concern, the merits of sharing or not sharing information. Those people are busy and are not necessarily trained as lawyers, so I think that that would involve substantial training. What financial consideration has been given to that?

Ellen Birt

As I said in my opening statement, £10.2 million has already been invested in supporting the people who will have responsibilities for the named person service to ready themselves for implementation. Those organisations confirmed with the Government ahead of August 2016 that they were ready to be compliant with the law under the 2014 act.

As I set out, the bill will make changes in relation to information sharing only. It clarifies the relationship between what would be an amended 2014 act and the current law on data sharing, human rights and confidentiality. Using modelling similar to that which was used during the 2014 act’s parliamentary progress, the Government has identified a further £1.2 million that will be invested in 2018-19 to develop the training and ensure that it becomes embedded within the normal CPD and supervision requirements that persons who will take on those new responsibilities already undertake. Our expectation is that it will be a one-off investment and that that training will become part of the regular and ordinary professional development and supervision.

Liz Smith

Why would it be a one-off investment, given that new named persons would require continuing training?

Ellen Birt

That is how services deal with turnover of their staff now. The additional funds that are being invested are to ensure that the training methodology and the practice materials that will be required to support that training are in place.

Liz Smith

Are there no financial predictions for the continuing costs beyond the additional £1.2 million in 2018-19?

Ellen Birt

As I said, we used the same methodology that was applied to the 2014 act. We will put in place the finances that are required to ensure that that training can be given, and that backfilling can be done, in 2018-19. However, as the financial memorandum sets out, the expectation is that that will be a one-off investment, with that training becoming part of the normal professional development and supervision requirements with which those professionals already engage.

The Convener

Thank you very much. I draw the evidence-taking session to a close and thank Ms Birt and Mr Paterson for attending and for their forbearance.

Second meeting transcript

The Convener (James Dornan)

Good morning and welcome to the 23rd meeting of the Education and Skills Committee in 2017. I remind everyone present to turn their mobile phones and other devices to silent for the duration of the meeting.

This is the second meeting at which we will consider the Children and Young People (Information Sharing) (Scotland) Bill. Two weeks ago we heard from Scottish Government officials. This morning we have two panels: the first is made up of representatives of the legal profession, and the second of people from the health service.

I welcome Kenny Meechan, who is a member of the privacy law sub-committee at the Law Society of Scotland, and Janys Scott, Queen’s counsel, from the Faculty of Advocates.

Liz Smith (Mid Scotland and Fife) (Con)

I will ask Janys Scott the first question. In your submission, you rightly say that the Supreme Court identified two key issues with the bill. Your submission states:

“The first was that there was a serious lack of clarity for those implementing the legislation and the second was the lack of safeguards for those affected.”

Your submission then says that

“Neither of these issues is easy to resolve and some of the criticisms of the Supreme Court will continue to apply if the Bill as drafted is passed and the accompanying Code of Practice is approved.”

Could you be very specific about what you think those criticisms by the Supreme Court are, and why they will not be addressed?

Janys Scott QC (Faculty of Advocates)

I will start with the criticism, which was that the bill solves one problem only to raise another. The Supreme Court said that when previous legislation required the sharing of data, and compliance with the Data Protection Act 1998 was required at the same time, that imposed a circular consideration on health visitors, teachers and others who were required to abide by the legislation. If a person is required by law to do something, they are not in breach of the 1998 act, but the act exempts them only if they are required to do something by law. There is a circular problem.

The bill proposes a shift so that there is no longer a requirement to share information, but a power to share information. That would remove the difficulty of circularity, but the Supreme Court has said that because the requirement to share information gives people protection under section 35 of the 1998 act, if they are no longer required to share information, that protection will be removed. The responsibility for safeguarding people’s data would be shifted, in effect, on to the information holder. That would require health visitors and teachers—laypeople—to implement complex law on data protection, and it is very fast-moving law. If you look at the responses to the consultation exercise, you will see that those people are puzzled and do not know what to do. They are asking you to define terms for them. It is going to be difficult for them.

I can go on to what the problem is with defining terms, if you like.

Liz Smith

I will come to that in a minute. To be clear, are you saying that the responsibility for taking the decision would be shifted on to the named person—the practitioner—instead of resting in law, or with Parliament because it has scrutinised that law? Is that what you consider to be the problem?

Janys Scott

That is part of the problem. It is not just named persons; other service providers must consider whether to pass data on to the named person. Laypeople who are involved in the care of children in other respects will be asked to exercise some very complex functions. The issue that the Supreme Court raises is whether the bill is clear enough to allow them to know what they are doing, and to allow families to foresee what will happen when they share data with their dentist, doctor, health visitor or teacher. Would they know what was going to happen, and could they regulate their behaviour accordingly, if they felt the need?

Liz Smith

Thank you. That is very helpful.

I come to the substantive issue, which I believe has been quite a problem since the Children and Young People (Scotland) Act 2014 was passed, and is a very considerable issue at the present time: the lack of a definition of the term “wellbeing”. That is raised in quite a number of the submissions. I am interested in the Law Society of Scotland’s perspective on it, as well. Two weeks ago, we were given information from the bill team, who said that the term “wellbeing”

“has been well utilised and understood among practitioners, families and children”.—[Official Report, Education and Skills Committee, 6 September 2017; c 12.]

Do you share that view?

Janys Scott

No. The Supreme Court said that it is a very vague concept; it is not “wellbeing” in the general sense that is used in legislation in which there is a statutory definition. There is a statutory definition later in the legislation, which is based on the SHANARRI—safe, healthy, achieving, nurtured, active, respected, responsible and included—concepts, and it is a very low threshold for legal intervention. I would say that it cannot be easily understood. That is my impression, as a lawyer; if other practitioners have a different view, so be it. From a data protection perspective, it is a much lower threshold than is appropriate for processing people’s data. Kenny Meechan is better placed to speak to that, because he is involved in local authority work on it.

Liz Smith

The concept of “wellbeing” is absolutely crucial. Paragraph 16 of the Supreme Court’s judgment very clearly says, “‘Wellbeing’ is not defined.” It makes the point that the SHANARRI indicators that have been used are far too vague—they can be misinterpreted or interpreted in different ways. There is a fundamental issue about a practitioner having to decide and, in this case, about when they make the decision, whether to share information. In your mind, does that fundamental problem of the lack of a definition of “wellbeing” remain a central problem in the bill?

Janys Scott

Yes, indeed. What we have to bear in mind is that the test for sharing data is higher than that. Therefore practitioners are considering wellbeing and asking, on the one hand, “Am I required to consider whether I need to pass on data?” and, on the other, “Can I do it?” The test for whether they can is higher than the test for whether they should. Practitioners are being asked to do quite a difficult juggling act: that is part of the problem of accessibility of the legislation to ordinary practitioners and families.

Liz Smith

Convener, would it be all right to hear the Law Society of Scotland’s perspective?

The Convener

Kenny, would you like to comment?

Kenny Meechan (Law Society of Scotland)

The matter was also considered by the Law Society of Scotland’s family law committee. It elected to send me here, although I am conscious that Janys Scott is well able to speak to family law aspects.

The committee had concerns about oversharing of information under the previous non-statutory regime. Getting it right for every child—GIRFEC—was working and was being applied reasonably coherently, but whether the level of understanding that is sufficient to make provisions work on the ground gives us enough clarity to allow us to frame legislation around it is a different question

The wellbeing threshold is much lower than what we would have done in terms of child protection measures. The child protection threshold is well understood: when someone has a concern about child protection issues, nobody will ever say, “Do not share the information.” That is the message that we have been trying to push through, and which also came through in the Caldicott report, which talked about the “duty to share information” in certain contexts. Because the wellbeing threshold is lower, it gives us a commensurately higher hurdle to get over if we are to make sure that the sharing is proportionate.

Liz Smith

My final point on that is that, as I understand it, the Scottish Government’s illustrative draft code of practice is designed to deal with safeguarding and to help practitioners to understand what the safeguarding role is. However, am I right in saying that if the term “wellbeing” is not adequately defined, that remains a central problem for taking the bill and, indeed, the code any further?

Kenny Meechan

I would say that it does. A person has to be clear about the purpose for which they share information. If the underlying definition of “wellbeing” is not clear, how can they say why they are sharing the information? Right away, that fundamentally falls foul of the clarity requirements under article 8 of the European convention on human rights.

Liz Smith

Thank you.

The Convener

I am just about to let Clare Haughey in. First, is the definition of “wellbeing” not already well used, in the Scottish context?

Kenny Meechan

It is well used by practitioners in the field, but that is probably a muddling-through approach.

The Convener

Do practitioners on some occasions share information based around their concerns about wellbeing?

Kenny Meechan

The GIRFEC approach has been proceeding reasonably successfully on a non-statutory basis.

The Convener

Is information being shared?

Kenny Meechan

There will be some information sharing, but at a lower level.

The Convener

So what is being proposed is already in place.

Kenny Meechan

The bill codifies what was existing practice. I think that the practice has tailed off somewhat in the wake of the Supreme Court’s decision.

Clare Haughey (Rutherglen) (SNP)

I thank the panel for being here. I refer members to my entry in the register of members’ interests, because I am going to ask some questions specifically about healthcare.

In your submissions on the complexity of the legal framework, both the Faculty of Advocates and the Law Society refer to the difficulty that busy professionals will have in making decisions about information sharing. However, the submission from the Royal College of Nursing states:

“Health professionals, such as health visitors, are, however, already well practised and familiar with information sharing and how to do this in line with data protection law, European law and in a manner which is compatible with the European Convention on Human Rights”.

Would you care to comment on the RCN’s submission? Would you contradict that view?

Kenny Meechan

I do not disagree that medical professionals are well versed in safeguarding—

Clare Haughey

We are talking about healthcare professionals, not medical professionals.

Kenny Meechan

Yes. I am sorry. It is well understood that healthcare professionals have an obligation of confidentiality in relation to information regarding the patients whom they see. However, we are rolling the policy out to a group who are much less familiar with the concept of multi-agency working that would be required. For example, other than occasionally being involved in child protection conferences, primary school headteachers will not have a native background in dealing with complex multi-agency referrals of the type that the bill envisages. Secondary school headteachers and guidance teachers—

Clare Haughey

With due respect, I say that I am asking you about healthcare professionals.

Kenny Meechan

I am reasonably satisfied that healthcare professionals have a working understanding of the safeguarding of information, although they are being asked to do something different that almost turns that on its head. Notwithstanding their understanding of patient confidentiality, we are now saying that they need to share information more widely than they have previously.

Clare Haughey

You said—I find this to be a rather condescending comment—that they are currently muddling through.

Kenny Meechan

I did not intend to be condescending; I intended to say that they are operating a non-codified set of rules.

Janys Scott

Health professionals by definition deal with sensitive personal information that requires a much more restrictive approach to sharing, but the bill deals with information that does not fall within what the Data Protection Act 1998 would consider to be sensitive personal data. We are considering broadening the sharing of information: one of the issues is whether we have adequately categorised information between general data for sharing and more sensitive data for sharing.

If nurses say that they are comfortable with that, so be it. I have seen no cases in which nurses have been challenged for sharing information inappropriately, so I cannot comment. However, there is concern about the widening of the scope of sharing that is implicit in what is proposed—if the bill is necessary at all.

Clare Haughey

What level of legal expertise would the framework require in order to satisfy you?

Janys Scott

How long is a piece of string? It is difficult to say. What we have at the moment has not done what it was meant to do. The committee would be bound to acknowledge that the existing attempt at preparing a code is not adequate to give helpful advice to the people who deal with such situations, although it would be okay for a lawyer who was looking at it.

Clare Haughey

Are you talking about the code?

Janys Scott

Yes. The problem with the bill is that it can operate only in conjunction with the code. If the code is satisfactory, that will assist in dealing with some of the issues relating to the bill.

Clare Haughey

The code is in draft form at the moment.

Janys Scott

Yes.

Clare Haughey

It is not the final piece of work.

Janys Scott

No. The question is whether the committee is prepared to sanction a piece of legislation that is dependent on a code that is not satisfactorily drafted and which is going to be extraordinarily difficult to draft.

The Convener

We will have the cabinet secretary before us on 8 November, and we will have other evidence sessions between now and then. I hope that, by that time, we will have a much clearer picture of the code.

Janys Scott

Yes—but I say with respect that the trouble is that this is a very rapidly moving area. You are trying to hit a moving target.

The Convener

I am trying not to hit it.

We are talking about not just health professionals but a wider range of people. Is the issue not then more about training? Mr Meechan has said that people will have to know a wide range of things that they did not have to know before. Is it not just about making people aware of the parameters within which they work?

10:00

Kenny Meechan

I spend a significant amount of my working life training people on data protection issues, so I know that it is not an easy subject for people to embrace. We have done a lot to get across the message about keeping people’s data safe and secure and, barring human error, we are usually not too bad at it. People will need a much deeper understanding of data protection and human rights legislation in order to satisfy themselves that all the tests have been met. In some regards, the tests in the code of practice are misleading, at best. The code suggests that people should ask for consent and that they should, if they do not get it, think about whether they can share the information anyway. That very much runs counter to the Information Commissioner’s Office’s code of practice on data sharing, which makes it clear that, if people are going to share without consent, they should not ask for consent, because that is misleading.

People will have to be trained in such concepts, and the code of practice does not really address that. It reads as a primer on information law—I have actually commended it to a couple of colleagues who were interested in finding out more about that—but it will not really tell a professional from another discipline what they need to know. It does not tie in in any meaningful way with what a named person is supposed to do.

The Convener

Are you suggesting that the problem lies with how the code of practice is written and that it should be made clearer?

Kenny Meechan

The code of practice has to be made clearer. There are some problems with the bill, but when we strip it back, the bill largely provides just a statutory vehicle for the code of practice. It can be argued that the powers to share information already exist. People have been sharing information because it is reasonably necessary to do that to carry out their functions as part of an education or health authority. That is a reasonably well established legal test. In some respects, the powers in the bill will not add to what we already have. Ultimately, the real meat of the bill is that it creates a statutory code of practice.

Gillian Martin (Aberdeenshire East) (SNP)

Am I correct that it is a draft code of practice?

Kenny Meechan

It is a draft code of practice. I have spoken to the bill team about it, who have said that it is a draft.

Gillian Martin

I would prefer that we refer to it as a draft code of practice, because anybody watching the meeting would be given the impression that the code of practice is set in stone, whereas obviously it is a draft at the moment.

In response to Clare Haughey, you said that headteachers and guidance teachers are not used to data sharing practices and child protection issues, but that is not really the case, is it?

Kenny Meechan

They are less used to them. They are involved in child protection processes, but that involves a much higher hurdle and it is easier for someone to understand exactly why they are sharing the information—it is because a child is, or may be, at risk of harm. Everyone can understand that the information is being shared in order to protect the child.

Gillian Martin

Yes—but guidance teachers and headteachers are involved in children’s hearings and issues to do with child protection every single day of their working lives. I am concerned about the language that you have used. Guidance teachers or headteachers who are watching the meeting will not be very pleased to hear you say that they “are less used to” data sharing than people in other sectors, because that is not the case.

Kenny Meechan

I work regularly with those people and am in no way, shape or form understating how skilled and experienced they are in the area. They are being asked to get involved in a new area with softer data and with less obvious reasons why they are being asked to do it.

Daniel Johnson (Edinburgh Southern) (Lab)

I have a quick question about the code of practice. The Supreme Court ruling suggested that there should be statutory guidance, subject to secondary legislation, but my understanding is that the illustrative code is short of that. Is that a flaw in the current approach?

Kenny Meechan

The Law Society submission deliberately did not go into much detail on the draft code of practice, for the simple reason that it is a draft code. The Faculty of Advocates has expressed some misgivings about it, which we share. I have seen the ICO’s written evidence, which you will discuss at a future meeting and which goes into some detail on why it believes that the draft code of practice is not adequate.

Broadly speaking, we agree with those submissions. However, I understand from what the cabinet secretary told the committee that the intention is to redraft the draft code of practice to reflect general data protection regulation requirements. The United Kingdom Data Protection Bill was introduced at the end of last week. Perhaps it can be taken into account to whatever extent that is possible, given that it is only starting its parliamentary journey.

Janys Scott

The problem is that the meat of what is proposed will be in the final code of practice, which will not come before Parliament. That is a big issue. Would Parliament want to approve a code of practice for professionals to implement that it had not seen and which can be changed?

Daniel Johnson

Are you saying that it would be better if the guidance was put on a statutory footing?

Janys Scott

It would be better if the guidance was on a footing that allowed MSPs to have parliamentary scrutiny of it.

Daniel Johnson

That is perfect. That is exactly what I wanted to know.

Johann Lamont (Glasgow) (Lab)

I have a couple of layperson questions, although I should say that I was involved in this area of work when I was a teacher.

You talk about the challenges that exist. As I understand it, there are two aspects to that; someone must decide whether the information that they want to share falls within this legal area and then there is a duty on them to consider whether they ought to share it. What evidence would they need to be able to provide to fulfil that duty and show that they had given consideration to whether to share the information? What responsibility would they have in deciding whether they had to think about the issue at all? Moreover, if they had decided that they had to think about it, what evidence would they have to provide to show that they had thought about it?

Janys Scott

That is a practice issue.

Kenny Meechan

Yes, it is a practice issue. At the most extreme end, someone could end up doing a full-blown privacy impact assessment or data protection impact assessment, but that would be far too cumbersome on a day-to-day basis. In practical terms, I imagine that it would come down to using some kind of pro forma that said that the factors in favour of sharing the information and the factors against it had been taken into account, that the views of the young person and the parent—if that was applicable in the circumstances—had been taken into account and that, on balance, all those factors having been taken into account, the decision had been made to share the information.

Johann Lamont

If someone decides not to share the information and something happens further down the line, will that decision be subject to legal scrutiny? Does the fact that someone had undertaken such consideration make the decision okay, or does the quality of the decision making come into play?

Kenny Meechan

Ultimately, the quality of the decision making can always be challenged by way of judicial review. I am not proposing that we ask all the named persons out there to draft a bombproof decision notice of every decision that they make, as that would not be workable. If a decision is wrong, it can be challenged and scrutinised down the line. I would not disagree with that—it is absolutely correct that that should be the case. However, I would not want to create a vast cottage industry in documentation surrounding the information-sharing process.

Johann Lamont

I am probably showing my ignorance, but what happens with a conflict of interests in sharing the information? I might take the view that it would be in the interests of the child for me to share the information, but it would certainly not be in the interests of the parent. How are such situations resolved?

Kenny Meechan

As the purpose of the legislation is to support the wellbeing of the child, the interests of the child would have to take paramouncy, unless there was such a mismatch in the relevant interests that there would be a very small benefit to the child and a huge disbenefit to the parent. That would be taken into account as part of the proportionality arguments and the balancing exercise that would be done under article 8 of ECHR.

Johann Lamont

In our previous session on the bill, we were told that it was an illustrative rather than a draft code of practice. Is there a distinction between those two things?

Janys Scott

That is a political term, is it not?

It is helpful, when passing a piece of legislation, to think whether it will be compliant with all the necessary requirements and whether it will be implemented in a lawful manner. One of the problems with meeting those conditions is that the Supreme Court was concerned that, because the provision in the named person legislation was unclear, it could not easily be implemented in a manner that was compliant with the law. With your questions, you are drilling into how easy and appropriate the implementation of the proposed new legislation will be, and you are expressing concerns about how it will be done and what the practical parts are. That is where professionals need the guidance. At the moment, we are looking at a higher level and at whether a framework will be needed to meet the requirements of the law. That was the concern of the Supreme Court.

Johann Lamont

The issue is also whether the practice inhibits the policy intention of safeguarding children. One of our judgments will be to test the practicalities of the legislation against the intention of the original legislation.

The Convener

I call Tavish Scott.

Tavish Scott (Shetland Islands) (LD)

I apologise for being late, convener.

The submission from the Faculty of Advocates to the committee says that, with regard to professionals, the imposition of the code

“risks making their job considerably more difficult and undermining the trust of families and the willingness to share information with the professionals concerned.”

Could you expand on that argument, please?

Janys Scott

As outlined in the Supreme Court’s decision, families do not know what professional people such as teachers, health visitors and midwives are going to do with the information that is shared with them. Will I be willing to share with my health visitor that I have post-natal depression? I do not know where that information will go. Can I be certain that it will not be shared with my child’s teacher? When might it be shared with my child’s teacher? Will it be passed on to them without my consent? In those circumstances, will I be willing to tell my health visitor that I have post-natal depression? If I do not tell them, where will my depression take me? That is just a small example of the sorts of issues that might arise unless we have clarity for families and they are kept involved in the process.

The difficulty is that the draft code does not really help very much. It is a legal document—it outlines the law—but it does not give a clear pointer to where that sort of issue will be taken.

Kenny, is that what you were thinking?

Kenny Meechan

Broadly speaking, yes. The illustrative code of practice does not provide any meaningful guidance in its current form. However, as I understand that it will be rewritten, I do not propose to speak about it at great length.

A more fundamental issue is that the legislation is trying to reconcile two almost irreconcilable points. Because the Supreme Court has said that this is all about sharing information without consent, you build a consent model into the information. Then you look at the GDPR, which is on the horizon, and the draft guidance on consent that has been issued under the GDPR, and they make the point that, because consent under the GDPR has to be freely given and informed, it will not work terribly well if there is a massive imbalance in power between the agency asking for consent and the person being asked. The GDPR specifically says that, for a public authority, consent will not be the most appropriate way forward if that power imbalance exists. That is a difficult square to circle.

We need a consent-based model, but we will find it difficult to make it fit within the GDPR’s requirements. I am not saying that that is impossible; it is just that Parliament faces a difficult balancing act to get to that position.

Tavish Scott

You are talking about how it will affect professionals conducting their duties.

Kenny Meechan

Yes, indeed.

Tavish Scott

Earlier you pointed out the contradiction with having a culture of clarity with regard to a person’s privacy as opposed to the opposite position. I might be misconstruing that, but that is what I took from your earlier remarks.

Kenny Meechan

We are asking people to change their mindset somewhat, but we are asking them to do it when it is not a good time to be trying to legislate in this field. We are a moving target in terms of what the UK data protection legislation will look like. Although we have the GDPR, an awful lot of it requires member states of the EU to make their own derogations and exemptions, and we have had visibility of the UK Government’s thinking on that only since Friday last week. It is hard to see how we can get the code of practice to tie in to that new legislative framework.

Tavish Scott

I totally get that point. Does that explain why the illustrative draft code is so weak? Many of the submissions that the committee has received have not been kind to it because, as you have pointed out, it is a legal document that a practitioner has to be able to understand. Is that partly explained in your point about the timing of these changes?

Kenny Meechan

It is certainly true that the timing has not helped. I believe that, instead of showing the code’s final form, the bill team deliberately couched the draft code in terms of the current law to give the committee a flavour of their thinking. The bill team is well aware that the Data Protection Act 1998 will not be in force by the time this legislation is enacted.

Tavish Scott

But both of you have suggested that it is very difficult for Parliament to pass a bill that gives effect to a code when that code, as currently drafted, is so deficient.

10:15

Janys Scott

The other problem is that it is going to be difficult to draft. Let me highlight three points. The first, which we have already discussed, relates to the vagueness of the term “wellbeing” and its centrality to whatever is done under the code and the legislation. Secondly, there is a question whether words are being misused. Some of the submissions refer to, for example, “sensitivity”; however, that is not the same thing as sensitive personal data, which is a categorised form of data.

Thirdly, some of those who have made submissions have built up certain undefined concepts—for example, “vital interests”—that we are not going to be able to help them with. They will just have to form a judgment in that respect; we will have to help them make that judgment, but it requires a very difficult judgment to be made. I accept that the Royal College of Nursing is content with its position, but various other organisations are not—they are confused and worried.

Tavish Scott

Given that there are organisations that are absolutely against this from first principles, is the danger of passing a bill with all the deficiencies of the code and so on that there will be a legal challenge again? Is this not setting up a near-certain legal challenge again?

Janys Scott

Yes, there will be a challenge either to the structure of the legislation or to individual instances of data processing.

Tavish Scott

So the Parliament will achieve nothing. We will pass a bill that will be challenged legally and those who we are meant to be helping—the children and young people—will be bypassed as the process goes back into court for another two years.

Janys Scott

Or people will be challenged and find themselves at the sharp end of litigation when what they wanted to do was to help children and do their best to implement a piece of legislation that had been passed.

Tavish Scott

That is very helpful. Thank you very much indeed.

The Convener

Yes, it is very helpful, but I suspect that the Government already knows that any bill that is passed is likely to be legally challenged. Let us hope that it is tightened by the time we get to that stage.

Oliver Mundell (Dumfriesshire) (Con)

I have some questions about the code of practice. The submission from the Faculty of Advocates says that such a code

“is not a substitute for legislation”,

and highlights the fact that it would not be debated or passed by Parliament. Does the bill get the balance wrong? Should more of the guiding principles—and, possibly, the need for and legal test for consent—be on the face of it?

Janys Scott

The difficulty is whether the Parliament can legislate for something that is already in other legislation. We know that very soon—indeed, on 25 May 2018—the legislation that exists at the moment will not be in place any more. At that time, the GDPR will become directly enforceable, and anything that you do will have to be compatible with that.

Our proposal is that, because the Supreme Court made such an issue of the need to inform people that their data was being shared, that should be added to the essential considerations required of the named person service provider. If you are going to ask the service provider to consider whether they should share the information in terms of the wellbeing test and then give them the power to share it, you should add to that a consideration of whether it is appropriate to inform people and so on, as specified by the Supreme Court. You will have seen our proposal; we think it consistent with the bill, and I do not think that it is something that the cabinet secretary will necessarily oppose. It does not impose any extra test other than one that is within the intendment of the bill. If you are going to impose a duty of consideration, you must have the full gamut.

Oliver Mundell

Thank you—that is super.

Your written submission also says:

“Where there is any conflict between the statute and the Code of Practice, the statute will prevail.”

In cases where the statute was silent about something that the code of practice spoke to, where would we stand legally if, for example, we went to judicial review?

Janys Scott

The existing bill contains a requirement for compliance with the code. In such cases, the expectation in any judicial review would be that the code would be complied with. The code is stronger than guidance—it imposes duties on people.

Oliver Mundell

From a technical point of view, does that mean that the code could change the law in this area? Could it in theory change the thresholds or where proportionality sits?

Janys Scott

It could not change human rights issues. If something was contrary to human rights, the human rights aspect would prevail and anything that was in the code would either have to be read down or disregarded. Moreover, it could not change something that had been imposed by a European regulation. Such regulations prevail over domestic law until we leave the European Union—and then we are in the hands of the bill that was introduced in the Westminster Parliament last Friday.

Kenny Meechan

The bill could usefully set out a number of ground rules. It should set out what the law is, and the code of practice should say how it is to be implemented. It should not create any new rules, standards or tests, although it might set out or clarify which tests the existing law expects people to apply.

The logical sequence of events should be, as has been mentioned, to think first of all whether sharing the information will assist the child’s wellbeing, however that is defined, and if the answer is yes, to proceed to considering whether it can be shared legally. The first question that you need to ask is, “Can I share this without consent?” The reason why that question comes first is so that you are not then going through the mock exercise of seeking consent when you have already decided to share the information anyway.

If the information is sufficiently important that you feel that you should be sharing it without consent, you are arguably going beyond wellbeing and starting to stray into child protection territory. That would be my thinking. Sharing without consent is something that the Supreme Court was very much against in its ruling. If the information that you have does not pass the threshold of being sufficiently important to share without consent, the next step is to figure out how to ask for consent in a way that is compatible with the GDPR requirement that makes it clear that, in cases where there is a power imbalance, consent is not always going to be appropriate.

The code of practice might usefully address that kind of area. I could envisage a code of practice that says, “When seeking consent from the young person or the parent, you must make it absolutely clear that there will be no adverse consequences if they say no.” If that is not made clear—and I appreciate Janys Scott’s experience that that is not how it works in practice at the moment—you cannot really say that a person has given free, informed and voluntary consent. That is the level of detail at which I would anticipate a code working.

Oliver Mundell

That is helpful.

My final question comes back to Daniel Johnson’s point about the statutory nature of the code of practice and the fact that there is no direct parliamentary scrutiny or vote. I was interested in the bill team’s comment last week that their thinking had been influenced by some approving comments made by the Supreme Court in relation to a statutory code of practice on policing. If we look at the code of practice to which the Supreme Court referred in its judgment, we see that it was introduced to the Westminster Parliament by statutory instrument, because a statutory instrument is needed to lay such codes before Parliament. Will such an approach be appropriate in this case, given the quantity of complex legal information that will have to be contained in the code of practice?

Janys Scott

That is a policy matter that relates to what the committee is prepared to do and to recommend to the Parliament.

Oliver Mundell

Do you think that, in that particular reference, the Supreme Court’s judgment recognised a difference between a statutory code of practice that required the Parliament’s express approval and a code of practice drafted by ministers at their discretion? Is there a legal distinction between the quality of those two instruments?

Janys Scott

You could read that into what Lord Reed said, but I am not in Lord Reed’s mind, so I do not really know.

Oliver Mundell

Do you think that that is a possible distinction?

Janys Scott

Yes. When I read through the Supreme Court judgment, I noted paragraphs 84 and 100, which I thought reflected somewhat on that issue and which are probably consistent with your comment.

The Convener

I ought to point out that it could mean anything.

Clare Haughey

I wanted to come in on Kenny Meechan’s point about giving adequate consent to share information and cases where there is a power imbalance. Surely there is already a power imbalance in most areas where consent is given. For example, if you give consent to an operation, there is a power imbalance between you and the surgeon; if you give consent to a lawyer to do something, there is a power imbalance there. Does it not already exist in this case?

Kenny Meechan

Yes, it already exists.

Clare Haughey

That was all that I wanted to clarify.

The Convener

Before I move on—[Interruption.] Please go through the convener, Tavish. Before I move on to Daniel Johnson’s question, I will pick up on one comment that Oliver Mundell made. If something is in the bill, it becomes much more difficult to change or amend at a later stage if circumstances change. Surely we should not be suggesting that something should be in the bill, given the changes that we will face as a result of legislation being made at Westminster. Surely it should be in the code of practice, which is much more flexible, so that we can change it according to circumstances.

Kenny Meechan

I have said previously that if you take everything else away, ultimately, the bill is a vehicle for the statutory code of practice. Given the importance that the Supreme Court has placed on that, I would not suggest that the content of the code should be within the primary legislation. I do not think that that would be appropriate at all. I think that you need more flexibility. However, I suggest that, given the code’s critical importance to making this work in a human rights-compatible way, it should probably be contained within secondary legislation to allow full parliamentary discussion of it, rather than simply being laid before the Parliament.

The Convener

That is not how it is generally done.

Kenny Meechan

It is not usually being done on the back of a Supreme Court decision that says that if you do not get this code of practice right, you will not be compliant with the law.

Tavish Scott

Exactly.

The Convener

Every single part of legislation has to be compliant with the law, so I do not see that that makes any difference at all, except for the fact that it has been brought back to us. The same principles applied when we were doing this originally. We had to make sure that it was compliant with the law. The Supreme Court said that in this case, we are not quite compliant, but the same principle applies with this as it does with any other piece of legislation.

Oliver, you wanted to come back in briefly.

Oliver Mundell

Yes. I meant to ask about timing and it has come up again. Is now a good time to look at this area of law or, given the points that you made in answer to the convener and with there being “a moving target” and so on, would it be better just to wait a while and see where things settle?

Kenny Meechan

The Parliament is being asked to pass legislation that is compatible primarily with data protection law. I think that you have given yourselves a near impossible task, given that data protection law is in flight at the moment. It might be more sensible to defer detailed discussion of this until such time as the UK Data Protection Bill has been passed at Westminster.

The Convener

My response to that is that we did not set the timetable for Westminster. Also, the protection of our children should not be held in abeyance until Westminster decides what its legislation should be.

Oliver Mundell

Is it okay for me to come back on that point?

The Convener

No. Daniel, would you like to come in now?

Oliver Mundell

Can I ask—

The Convener

No, Oliver. We are moving on.

Daniel Johnson

If I can briefly paraphrase, I think that you said at the beginning of your evidence that the conflict that was previously inherent in the law has been resolved but it has created a more difficult decision for practitioners. Can you bring out how finely balanced that decision would be for you as legal professionals, with your understanding of the law?

Janys Scott

I put myself in the position of a primary school teacher. Information comes into my possession and I ask myself whether I should share it with social work. To decide that, I will have to go through an exercise which, at the moment, I do not have adequate guidance on. I will have to ask myself, does this information impact on some aspect of the SHANARRI indicators test? Does it impact on how this child is achieving and what does that mean? Is it necessary to share the information to allow this child to achieve better? If I do not share the information, what is the effect of that? If I am thinking of sharing the information, will it be a proportionate sharing? That is to say, will the sharing of the information result in a problem that is more serious than not sharing the information?

The thought of a primary school teacher sitting down at 4 o’clock in the middle of marking a load of books and thinking all that through without help and trying to make their way through a code of practice on things that I, as a lawyer, would find difficult, in the knowledge that if they get it wrong, it will be raised in a court of law, strikes me as something that would be unattractive to that primary school teacher. Does that give a flavour of what I mean?

10:30

Daniel Johnson

Yes. Mr Meechan, do you agree with that? Would you say that, even as a legal professional, that would be a difficult decision to make?

Kenny Meechan

As a legal professional, I would normally be involved in providing legal advice to a practitioner. Typically, I would deal with social workers rather than education professionals, but the principle is the same. I can provide the legal framework for them, but they have practitioner knowledge, experience and skills that I do not have.

It is not purely a legal question. I can readily say—not “readily”; the question is difficult even for a lawyer—“I’ve looked at this and here’s the law,” but, at the end of the day, I do not know about child welfare. I am not a professional who works with young people, so I depend on social workers, teachers or healthcare workers to provide their input into the process. I can envisage an awful lot of people who have been given named person responsibilities having their legal department on speed dial.

Daniel Johnson

Janys Scott mentioned the SHANARRI indicators. It strikes me that, with things such as “included” and “achieving”, we are talking about asking professionals to consider sharing data in areas in which people would not even have begun to consider sharing them before the bill. Is that a fair statement to make?

Janys Scott

I think that it is. An additional duty of consideration is being posed, but that is only the first step in determining whether the data should be shared.

Daniel Johnson

I want to follow on from Johann Lamont’s comments and questions about evidence and how people will make decisions. It strikes me that, by stating the duty to consider in law, people will be subject to challenge on whether they considered adequately on both sides of the equation. What might the potential legal liabilities and consequences for service providers and individual practitioners be? Will there be challenges to whether they have adequately considered? Is the danger more about when they share or that they might be challenged when they decide not to share?

Janys Scott

It is a damned if you do, damned if you don’t situation. That has been brought home to professionals who are involved in the welfare of children.

Of course people share in cases in which there is an obvious child protection concern, but the bill is not needed to do that. That is done anyway, and the bill would add nothing to that. It would add a duty to consider in circumstances in which people would not previously have done so. In my field of work—I deal with litigation regarding children—if it was found in litigation between parents that a teacher had shared something when perhaps they should not have done so and that had escaped into litigation, there would be criticism. That would be the sort of field in which I would come into things.

At the very worst, if data was shared absolutely inappropriately, there would, of course, be a fine and damages would be payable by the relevant authority. That would come under the general data protection regulation and the approach would be rather more severe than it is at the moment. However, one hopes that we would never get to that. That is the most extreme case; in the least extreme case, there would simply be criticism.

Daniel Johnson

Is it conceivable that teachers and health visitors might end up facing litigation?

Janys Scott

Potentially.

Kenny Meechan

I would not have thought that they would face personal litigation in the absence of bad faith of some sort. Their simply making their judgment call incorrectly would come back to the employing organisation rather than to the individual.

Daniel Johnson

That is helpful. Thank you.

Tavish Scott

On Daniel Johnson’s question whether a teacher could potentially face litigation, the Parliament will pass legislation next year that will make headteachers specifically accountable in law for their schools. That could mean the headteacher as the corporate person who is responsible for the school being accountable, if not the particular teacher.

Janys Scott

That would drive down responsibility from the local authority to the school. I can see that, but one would hope that that would not happen.

Tavish Scott

Indeed—of course not. However, do you concede that there is that potential?

Janys Scott

Possibly.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

I go back to the question of consent. Both your organisations have indicated that they would like there to be explicit reference to consent in the bill. Is that really necessary? Is that not adequately covered in the code of practice?

Kenny Meechan

There is a non-consensual element in the bill. The provisions that relate to a change in service provider say that the outgoing service provider will provide the details of the child or young person to the supposedly incoming service provider. That does not reference consent anywhere; it just places a straight duty on the outgoing service provider. It is made subject to the test in proposed new section 26A of the 2014 act of whether it is data protection compliant, but the problem is that that takes us straight into the same logic puzzle with which the Supreme Court wrestled and that it concluded was such a weird question that it was unclear and therefore fell foul of the tests.

Because we are talking simply about the name and address of the young person in question, it can probably be done proportionately, but you need to acknowledge that the bill already contains a non-consensual provision. The requirement for consent would probably be more usefully addressed by revising section 26B to say what the code of practice needs to do and say whether you are having it in the primary legislation. However, the primary legislation could set out the parameters of the code of practice and usefully clarify that it must deal with the consent issues.

Janys Scott

The issue is not just consent. We have talked a lot about consent, but it is also about telling people that the information has been shared. One thing on which Lord Reed focuses in the Supreme Court judgment is that people will not necessarily know that their information will be, or has been, shared. That is why we suggest that people should be told if the information has been shared. There may be circumstances when that cannot be done because it would be dangerous to the child but, in general, unless it would be dangerous and cause a real problem, surely people should know that the information has been passed on.

Colin Beattie

It seems from what has been said and from your organisations’ submissions that you are indicating that consent is not in itself a gateway to sharing information.

Kenny Meechan

If you can share information validly under the GDPR tests, consent is a gateway for you to do it, subject to the caveat of ensuring that it is valid. I was asked whether there is an existing power imbalance. There is, but, at the moment, there is no legal regulatory framework that makes that a particularly problematic issue. That is changing, so the legal consequences of the existing power imbalance will change come 26 May next year.

Colin Beattie

Is it much different from what the professionals who work with children do and share at the moment? Are we fundamentally changing their responsibilities?

Kenny Meechan

We are fundamentally changing how we approach it. For my sins, I am responsible for GDPR implementation in my organisation. We are beginning to send the message to staff that we will have to work in a fundamentally different way. I have spent the past 17 years that the Data Protection Act 1998 has been in place repeatedly telling people to get consent and I will probably spend the rest of my career saying, “Are you really sure that you want to get consent? I don’t think that is the way forward for you.” GDPR is driving a fundamental shift in how we engage with people. That change across the board needs to be reflected in the bill.

Colin Beattie

Are you saying that that affects people who are engaged at present in fields in which they have to consider and decide on sharing information?

Kenny Meechan

Yes. At the moment, a social work department, for example, will have an information system, which records client consent to hold the information and to share it with the health board. When we analyse that in GDPR terms, the department should go back and say to its clients that, now that it has considered the matter against the new legal framework, it has to be able to process their information if they want to engage with its services and it will not use a consent model any more for core service delivery because such a model is now misleading. Service providers will be saying to people that they have the choice to engage with a service or not and, if they choose to engage, the service must be able to share their information.

On the back of that, they will be able to offer people additional services for which the service provider would seek consent. One example that I have given is income maximisation. If somebody engages with the social work department because they have an addiction problem, the department needs to be able to process their information to support them with their addiction issues. That is a given. It cannot do that without having the person’s information. However, it could also pass that information to another team that could tell the person that they are eligible for a number of benefits that they are not presently getting or that they can engage with a number of services that they are not presently getting. It would need the individual’s consent to do that extra piece of work because it would not be the core service with which they were engaging; it would be an add-on.

That is the kind of thought process through which we have to go to change the mindsets within the organisation ahead of GDPR coming in. It is a big change.

Colin Beattie

Given the fact that, as it appears from what you say, a fairly fundamental change is taking place anyway in the way that the professionals will have to approach the matter in the future, is there a benefit—there probably is—in getting the named person provisions right because it would create a structure through which they can operate?

Kenny Meechan

Absolutely. To take the example that I just gave of the social work department with the add-on service, we can make consent work but we need to approach it carefully. I know from previous discussions that Janys Scott has instances in which consent is not exactly freely given in contexts in which the professionals tell people that they need to sign a form or else. They have a signature on a piece of paper, but it is not freely given consent.

Colin Beattie

All those complexities exist at the moment and are gathering force, so there is a bit of an impetus to get it right.

Kenny Meechan

Absolutely.

The Convener

I thank the witnesses very much for attending and giving us their words of wisdom. We will suspend for a few minutes to allow the next panel of witnesses to take their seats.

10:41 Meeting suspended.

10:46 On resuming—

The Convener

I welcome our second panel. Professor Alison McCallum is director of public health and health policy at NHS Lothian; Professor Hugo van Woerden is director of public health at NHS Highland; Valerie White is consultant in dental public health at NHS Dumfries and Galloway; Jean Cowie is principal educator at NHS Education for Scotland; Annette Holliday is a health visitor and member of Unite; and Lorna Greene is policy officer at Royal College of Nursing Scotland.

Before we start, I should mention that Professor van Woerden, Valerie White and Jean Cowie are appearing as individuals who work for health boards, so their perspective is not necessarily that of their employers. In addition, Annette Holliday is appearing as a health visitor and accredited member of Unite.

Colin Beattie

Will the witnesses talk about their current practice in sharing information on wellbeing, with and without consent?

Valerie White

I am happy to take that. In dentistry we had been moving towards implementation of the Children and Young People (Scotland) Act 2014, which involved a different threshold for sharing information. The threshold for sharing information if a child is at risk of significant harm is clear, because that is a child protection issue, so there was a bit of a cultural shift in relation to sharing information about health and wellbeing concerns, which required a lot of education, training and support.

Until the Supreme Court ruling, we had worked on the understanding that there was a duty to share information if there was a health and wellbeing concern, regardless of whether there was consent. That was the path down which we anticipated going. Since the ruling, there is a degree of confusion about what we can and cannot share and the threshold for sharing information. We are clear that we must share child protection concerns, but we are struggling with what to do about a wellbeing concern at the moment.

Colin Beattie

What information would you share, typically, in the past?

Valerie White

Usually in dental services we would share information if there was significant risk of harm to the child and we thought that there was a child protection issue.

Colin Beattie

Would that typically be done without consent, because child protection overrides everything?

Valerie White

Yes. Best practice is to seek consent if that is possible, but child protection overrides that, so information would be shared and a referral made to social services in an instance in which there was such concern.

Colin Beattie

Does anyone share information with consent or does it always come down to there being overriding issues, such as child protection issues?

Annette Holliday

We would always share. In practice, we would always do that in discussion with the parent, especially if I wanted to discuss information with other involved professionals. I would ask the parent if it was all right if I contacted the other professionals involved.

Colin Beattie

Do you have an example?

Annette Holliday

An example would be developmental issues. I might want to discuss with a child’s nursery how the child was being supported. I might want to discuss things with our speech and language therapists. There might be discussions with the general practitioner about health issues. The examples are not all child-protection related.

Colin Beattie

How do you think that the requirement to consider sharing information might affect the way that you operate at the moment?

Professor Hugo van Woerden

Part of the background is that, historically, health professionals have worked on the basis that there is an assumption of confidentiality, so nothing is shared unless there is consent or there is some public benefit reason for sharing it. That historic assumption of complete confidentiality is the starting point.

The Convener

You referred to a “public benefit reason”. Are we not talking about doing exactly the same thing, except that we might well have lowered the bar as to what we consider to be public benefit—in this case it is about the wellbeing of the child as opposed to the protection of the child?

Professor van Woerden

I think that you are right. Fundamentally, there is a change to where the bar is in that regard. As Professor McCallum said in her submission, the slight risk is of a clash with professional guidance for, say, doctors, in relation to where the General Medical Council puts the bar.

The Convener

Professor McCallum, would you like to comment on that?

Professor Alison McCallum (NHS Lothian)

Yes. I want to make two points. One is about the infrastructure within which we share information for the purpose of providing services to children and families, which I mentioned in our submission. Under NHS and education acts, we have duties to work together to provide safe, effective care for children, which includes providing immunisation, ensuring that children have the support that they need should developmental issues become a problem and ensuring that there is not a lack of a framework for that to happen when an individual family comes forward. One aspect is ensuring that we have the right framework that allows information to be shared for the benefit of children when it is appropriate to do so.

The other point is that we talk about consent when we mean working with children and families to engage them in services to come to a shared view of the best way forward and when we are talking about getting formal consent for procedures. The duty to consider sharing information seems to me to be an appropriate phrase that allows us to engage children and families to come to a shared view, even if it is not appropriate to go down the route of obtaining formal consent, which older children and families could withdraw.

Colin Beattie

Are you referring to situations in which there is a professional relationship with the family and a decision is made in that context on the best way to care for whichever member of the family requires the care, as opposed to sharing information with third parties, which is perhaps the more contentious side of things?

Professor McCallum

The framework that we have in place in Scotland allows us to have formal relationships between, for example, the health service and the local authority and with third sector organisations and to agree, in line with the Data Protection Act 1998, what information is shared for the purpose of providing services.

Local authorities do not provide all the services themselves; some services are provided under contract by third sector organisations. Therefore, it is important that the frameworks that we have put in place to enable people to seek help do not get closed off because of concerns about the sharing of information that children and families have already signed up to as part of an engagement with a service. For me, most of the work that we do around the appropriate sharing of information is, as far as possible, coming to a shared view about the best way forward and then agreeing what sort of information will be shared in what format rather than it being a blanket yes or no.

Lorna Greene (Royal College of Nursing Scotland)

Could you please repeat your original question about the changes to information sharing? I want to make sure that I answer it correctly.

Colin Beattie

The changes to information sharing?

Lorna Greene

Yes. You asked what the implications might be.

Colin Beattie

Yes. It is proposed that there be a requirement to consider sharing information. How would that change current practice—the way in which you are operating at the moment? Would it have a significant impact?

Lorna Greene

The RCN thinks that it could have a quite significant impact by leading to defensive practice. By including the duty to consider sharing information, you could be leading professionals towards what might become a tick-box exercise, which could detract from meaningful practice. We would see that as, ultimately, having the opposite effect to what the Scottish Government would like to achieve through the implementation of the named person policy—the principles of GIRFEC. We think that that would be best achieved by allowing professionals to develop trusting relationships with the people whom they are providing services to and giving them the longest time possible to engage meaningfully with those people. We are worried that, with the introduction of a duty to consider, professionals might become nervous and want to cover all their bases, which would take time away from that meaningful, face-to-face interaction. That is what we see as the potential negative impact on practice of the duty to consider sharing information.

Colin Beattie

Has the Supreme Court’s decision had any impact on your confidence to continue sharing information as you are doing?

Lorna Greene

I should clarify that I am not a clinician or practitioner; I am a policy officer. I am not out there at the coalface, delivering care.

We are hearing from our members that, as a result of the judgment, there is confusion and nervousness. What was being done as best practice and what was seen as a good policy change—we are very positive about the principle behind the named person—is now under threat because practitioners are increasingly nervous. That is down to a combination of factors including the negative media reports that have surrounded the policy and the controversy that has followed it.

In our engagement with the Scottish Government, we have said that some of the messaging around the named person needs to change to make it clear that it is fundamentally about building trusting relationships that are about supporting people and working in partnership with families and children. That is what our members, as health visitors, set out to do every day, and the policy is about ensuring that their practice is as meaningful as possible. We are concerned that the duty to consider could get in the way of the meaningful part of the practice.

Colin Beattie

Does anyone else have similar concerns about the Supreme Court’s decision?

Annette Holliday

We see defensive practice happening anyway. Regardless of whether a named person is there, people get nervous about things. There are sometimes concerns about professional regulation and so on. Defensive practice is part and parcel of everyday health visiting.

Daniel Johnson

I am interested in the issue of defensive practice. The RCN’s submission says that the duty to consider may

“undermine the principles of GIRFEC by resulting in defensive practice.”

That is quite a strong statement. What would be the impacts and consequences on the ground if that were to come about?

11:00

Lorna Greene

To explain what we mean by that, we need to go back to where the concept of the named person came from and took off. The approach in Highland is a really positive example of what happens when practitioners are allowed to develop meaningful relationships and build trust, and when information sharing takes place in an appropriate way that is in line with the existing legal parameters. That happened as part of best practice, and we see it as a really great contributor to GIRFEC and promoting and supporting wellbeing.

We think that the duty to consider will affect meaningful practice, turn the process into a tick-box exercise and affect the time that is available to professionals to provide face-to-face support. Such support is key. If we look at the place where the concept began, we see that it was about the time and the relationships that were built up, and those are key to GIRFEC. Working in partnership with children and families and offering support are key. We do not want the principles to be undermined by a reduction in the time that is available because more time is being spent at a desk sifting through paperwork.

Daniel Johnson

One of the points that the bill team made was that carrying out the duty to consider—I hope that you will agree that that is the key change for practitioners, as it is a new consideration that they will have to carry out—is in essence just a continuation of the professional judgments that practitioners make daily. Is it the same kind of decision and judgment or is it a different kind? What additional pressure might the new duty bring about on the ground?

Annette Holliday

With some of the GIRFEC principles, there are definitely changes to decision-making practices and to current health visiting practice, so that will create differences. The issue about time goes back to resource and being able to ensure that there are an adequate number of health visitors, or more, so that time can be spent with families and shared decision making can happen. We know that that is a longer and slower process than the sort of fix-it model in which we think that the professional knows best. These things take time and energy to build. If they are not resourced enough, we will move back to that tick-box exercise of making sure that we are covered rather than working in true partnership with families.

Daniel Johnson

Further to that, one of my concerns is that health visitors will be named persons for children beyond the point that they might ordinarily have contact—you talked about when children are at nursery. Is there a concern about ensuring that health visitors have sufficient contact to give them the experience that they need to make those considerations in the first place?

Annette Holliday

An enhanced universal pathway is to be brought in when we are resourced enough to deliver that. That will provide the additional contacts that were lacking previously. There were three minimum contacts for a health visitor, and we will move to 11, one of which will be in the pre-school year. Over time, health visitors have built up good communication with nurseries. However, no health board has yet implemented the universal pathway contacts. That creates concerns about the length of time before children are seen, and that takes us back to resources.

Daniel Johnson

I have one final question. One of the points that was raised by the previous panel, particularly by the Faculty of Advocates, was that the system may well lead to legal challenge, certainly of service providers and perhaps of practitioners. Is that a concern to the RCN and Unite? What consideration have you given to that prospect?

Annette Holliday

Do you mean legal challenges to the practitioner?

Daniel Johnson

Yes, or the service provider.

Annette Holliday

There is certainly nervousness about where responsibilities lie in the delivery of named person services.

Lorna Greene

The RCN is very concerned about that. The bill says that service providers and organisations have a duty to consider. However, if we think about it, how does an organisation consider? It is a very vague, strange concept. The reality is that it takes a person to consider; it also takes a person to evidence that they have considered. Organisations can delegate duties. When they do so, they delegate them to professionals who are individuals. We are concerned that the approach would affect our members, who could find themselves exposed to professional risk that was not there previously and which is disguised, in the bill, by hiding behind words such as “organisations” and “service providers”.

Daniel Johnson

Thank you.

The Convener

I will come in at this point. The advice that we got was that the organisations are responsible for that, and not the individuals. That is the way in which it has been written. The bill is not law yet, but that is certainly the advice that we have got from—

Daniel Johnson

In all fairness—

The Convener

Excuse me, Daniel; I am speaking.

That is the advice that we got from our support team before today’s committee meeting. Anyway, as I have said, we are still going through the process; let us see how it works out. What I am trying to do is to put the panel’s minds at ease that there is not a trap here to catch practitioners.

Professor McCallum, would you like to comment?

Professor McCallum

We already face challenges from parents—particularly those who do not wish information about their children to be shared. That impacts on the way in which we provide immunisation services, for example. Under the National Health Service (Scotland) Act 1978, we are required to offer immunisations to all children. It is important that we have positive child identification so that we can identify children for whom immunisation is not clinically appropriate but it can be offered to everyone else. There is a point of consent at which parents and, indeed, older children can refuse consent to immunisation. We need to know who every child is and where they go to school in order to provide universal services, as well as to ensure that we have the infrastructure in place to provide additional support for children with chronic and on-going problems, so that is already a problem for us.

In the health service, however, we have Caldicott guardians, who are people, such as me, who take on that organisational responsibility. I have an information governance assurance board that covers such issues, and it has two non-executive directors on it. Therefore we have organisational cover. When we work with local authorities, we have a partnership, but they do not have the same infrastructure that we do to enable such decisions to be taken professionally, and with legal advice, but not directed solely by the actual words that are written in the law. Therefore there is an opportunity there for us to move to legal interpretation of things where that was not the original intention of the process.

Professor van Woerden

I have a tiny, small practical point, which is that it might be helpful if the guidance were to clarify how long information is stored for, where there is a duty to consider sharing information. It is just a small practical issue that would be helpful.

The Convener

Thank you for that. That is helpful.

Annette Holliday

We understand the position about the organisation’s responsibility, but it is very difficult, when you are one person sitting in somebody’s living room. Certainly in health visiting practice, no one practitioner has another’s knowledge, because no other practitioner builds up the same relationship at the same time. The information that a practitioner takes back to their organisation is theirs.

The Convener

I completely accept that. What I am saying is that the umbrella cover is that of the organisation. The information that we were given is that it would not be Annette Holliday who would be held to account; it would be the local authority.

Annette Holliday

I appreciate that, but I am the person who holds that information and tells it back to my employer—

The Convener

Yes; I get that too.

Annette Holliday

—and no one else can independently verify that, because they have not been in and around that child at the same time.

The Convener

And the organisation has placed trust in you and is responsible for your behaviour on that one.

A couple of people want to come in, so I will come back to Lorna Greene.

Gillian Martin

A few of you were sitting in the gallery when the previous panel was in. Janys Scott made a recommendation, which was also in a submission to us, that people be notified when data about them is shared. Given what you have just been talking about, what impact could that have on, say, the safety of children? If you notice that a parent has refused care for a child in a way that concerns you and the parent has to be notified when you make another person aware of the situation, what impact might that have?

Valerie White

Obviously, people will want to follow good practice and get consent where appropriate, but there is certainly a tension in that respect. How will seeking consent affect your on-going relationship? It is a difficult issue; on the one hand, you have your professional obligations, but, on the other, you do not want to stretch your relationship with the family. If you were able to have an informal conversation with the named person about some low-level concern, they might be able to reassure you on the matter or even say, “Thanks very much—I’ll have to go and look into that.”

Gillian Martin

So if a letter had to be originated to let a parent know that you had spoken to the named person, that could be an issue in some cases.

Valerie White

It could be a barrier. Let us be realistic: historically, there was some nervousness even about certain child protection matters, but we have got over that and moved past it now. We are talking about a cultural shift with the new threshold that has come about as a result of GIRFEC and the wellbeing-focused and supportive approach that is being taken. Having to share letters and so on might make it difficult for people to see it as a supportive approach.

Annette Holliday

The fact is that relationships can be fractured and it can be difficult to restore them. At certain levels of child protection, other processes come into play. There is the potential for more of that to happen at the wellbeing level, because at that level you might not have the child protection framework that you can use as a counterbalance. It all comes down to having shared decision making and shared views with families, and practitioners being brave enough to go beyond all that, but you certainly do not want to fracture any more relationships with families, as that will be damaging in the longer term.

Lorna Greene

The RCN has made it quite clear that it sees the named person as part of an early intervention and prevention programme and that conversations about wellbeing should, for the most part, take place in a forum where there is consent and where you are having a dialogue with the family and their children. If you have that conversation and you are concerned that the child is at risk of harm, you begin to veer into child protection issues, which will require a different conversation. As a result, we have tried to focus on this as part of an early intervention and prevention strategy and policy and to keep it rooted in that domain.

Going back to the duty to consider sharing information and the impact on professionals, which we discussed earlier, I think that it is also worth mentioning an issue that has not yet been mentioned: the duty to identify. It, too, could have repercussions for professionals, but it feels quite vague and we are not entirely sure what it means yet. For example, is it a duty to identify information that comes directly to you, or is it a duty to identify and further investigate a particular issue? What does that mean for the role of the health visitor? When we spoke to the legal professionals in our organisations, they were a little bit concerned about that duty and flagged up the potential for that role to take on something of a watchdog aspect. It is not an issue that we have explored a whole lot—and I did not hear it being explored in the previous evidence session—but it should definitely be flagged up, because we think that it could have repercussions for our members.

The Convener

Thank you. That was helpful.

Professor van Woerden

I think that trust is often built on sharing, openness and transparency. I certainly support the suggestion that, under normal circumstances, families would be informed if information was being shared. I say that for two reasons: first, it builds trust; and secondly, it provides the opportunity to correct matters of fact. Often such areas are quite complex, and it is possible that the professional in question might be incorrect about certain matters of fact.

11:15

Johann Lamont

It has been said that responsibility for a failure in the system would lie with the local authority or health board. I am interested to know what such organisations would do internally to protect themselves. What are the consequences for practitioners if a health board says, “We might get into trouble, so we want to ensure that all our employees are doing the right thing”? Does that put a different kind of pressure on people? Perhaps Annette Holliday can answer my question. Have you had training on that, Annette? I presume that an organisation would want to ensure internally that employees were doing the right thing in order to protect itself.

Annette Holliday

I am not here to speak for my organisation. As a health visitor, I can say that we have had training, but it took place before the Supreme Court ruling so there would need to be updates and changes in respect of the Children and Young People (Information Sharing) (Scotland) Bill. We were trained on the duty to share.

You ask what would happen if there were failures. As with anything, the usual investigatory proceedings would follow, and practitioners are concerned about disciplinary proceedings being taken against them.

Johann Lamont

Have there been conversations in health boards about the nature of such a disciplinary procedure, given that there is a lack of clarity about expectations?

Annette Holliday

I cannot answer that—I do not know.

Professor McCallum

There has been a lot of training in NHS Lothian. Following the Supreme Court judgment, further communications went out to say, “Please continue to work in the current professional manner and seek advice as appropriate.”

Our child health commissioner sits on our information governance assurance board and our multi-agency data-sharing partnership. She and one of her support folk have a work programme that is designed to ensure, as far as possible, that people understand how to do their jobs and how the organisation will support them.

The Convener

Tavish Scott can go next, followed by Liz Smith.

Tavish Scott

I have a couple of questions about individual responsibility for decisions, which you have touched on this morning, because the position is not clear. Your concerns are clear, and I would like to bottom those out. We are discussing not the principle of the named person scheme but the draft bill and the code of practice. You will have heard a lot of concerns about the code in earlier evidence. Can you describe your concerns about what it would mean, as currently constituted, for individual responsibility for decisions?

Lorna Greene

Are you referring to the code of practice specifically?

Tavish Scott

Yes.

Lorna Greene

I appreciated what Gillian Martin said in the previous evidence session. It is an illustrative code, so it is an example and in no way indicates what we could reasonably expect to see at the end of the process.

The RCN, along with Unite and others, has engaged with the GIRFEC team as part of its work with stakeholders. At the most recent meeting, we were told that it was more than likely that the code of practice would look entirely different at the end of the process. We have not spent much time engaging on the code, first because we do not think that legislation is the right way to go about fixing what the judgment said about the 2014 act, and secondly because we do not see the point in engaging on an illustrative code that could change dramatically. At present, there is not a lot that we can sink our teeth into.

In addition, we have not been given an assurance about where the code will sit in relation to the Nursing and Midwifery Council’s code of practice. We are clear that anything that becomes law would sit above the NMC’s code, but we do not know where the two codes of practice would sit in the hierarchy relative to each other. Would one sit higher than the other, or would they sit next to each other? We have not been told. Our main concern at this stage is to get clarification on that point so that, if the code of practice comes in and we have to comment on it further, we will at least know where it sits in relation to the NMC’s code.

Tavish Scott

That is very fair. The Parliament is being asked to pass legislation that gives effect to a code of practice that is now in draft. As you have just said, we do not know what it could look like in the future. That is not the way it should be done, is it?

Lorna Greene

That is why we do not think that the legislation is a good idea.

Liz Smith

I have a practical question that relates to quite a few of the comments that have been made. The proposed change would mean that you would have to make decisions about whether you should share information or not, and you have just flagged up some of the codes that you would have to be cognisant of in order to do that. Are any of you able to quantify the amount of time that you would have to spend in your daily job to ensure that that was documented and, given that you were accountable, why you had made a decision to share or, in some cases, not to share information? Can we get from you any indication of the time that that might involve?

Valerie White

I can probably answer from the point of view of dentists or independent contractors. The time to sit and document all of that is probably not built into the daily routine of how they manage their patients, so it would have a significant impact in terms of time. I am hugely positive about getting it right for every child and its principles, but how it will work in practice has not been factored in. General dental practitioners have a huge amount of information that could support the health and wellbeing of children, and there are probably other professions, too, on which it would have an impact. There has been financial modelling on the health visiting aspect, but it goes much wider than that.

The Convener

Professor van Woerden, I believe that I cut you off the last time you were about to answer. I am sorry that I did not notice you.

Professor van Woerden

There are implications for individuals, but there is also organisational time resource involved, in relation to the collation, transmission across or between organisations, storage and eventual safe disposal of such information.

Clare Haughey

I want to come back briefly on Lorna Greene’s point. She may not have seen the NMC’s submission. The NMC said that, because its “main interest” was

“making sure that our UK wide regulatory provisions and any named person information sharing provisions in Scotland can operate”

beside the code, it could

“currently see no conflict between the draft legislation proposed and our own regulatory approaches, notably our Code.”

I just wanted to offer that reassurance that the NMC is engaged in the process, which it needs to be.

Lorna Greene

Sure; I have read that submission. The NMC is part of the same group that we are with the GIRFEC team. That is correct, but what it is talking about is the legislation, not the code of practice. The NMC has not commented on the code of practice because it is aware, as are we, that it is not the final code of practice.

Clare Haughey

Absolutely.

Lorna Greene

That is still our concern.

Clare Haughey

I wanted to offer reassurance, particularly to registered nurses and midwives who may be watching this meeting, that the NMC is involved and engaged in the process, which is important.

Lorna Greene

The NMC is involved, and we are working with it.

Ruth Maguire (Cunninghame South) (SNP)

Good morning panel. Thank you for coming. One of the strong themes that came through in the submissions was the need for training and guidance on information sharing. I am interested to hear panel members’ reflections on their experience of the training that was provided for the 2014 act and the type of training that they think would be most useful. Also, we have heard that GIRFEC is to cut across all teams who are working with children—how wide do you think the training needs to be?

Jean Cowie

The training needs to go across all professional groups. NHS Education for Scotland has been involved in developing resources—online modules—but those are on hold until decisions have been made about information sharing. The training needs to be sustainable and practical, with real-life examples and scenarios to work through to explore decision making. To support the training, a system of supervision needs to be in place to support practitioners with their decision making. I know that supervision has been considered in nursing, although I am not sure what is happening in other professional groups. However, to ensure that there is consistency across the board, there perhaps needs to be a model or system of supervision that goes across the professional groups.

Ruth Maguire

As different professionals have different models of supervision at the moment, will that be challenging?

Jean Cowie

Possibly.

Annette Holliday

The training on other aspects of the 2014 act was challenging for the workforce. Where practice support was required, people could access training, but putting that into their practice and changing models of practice was hugely challenging, and it is still not fully embedded.

Ruth Maguire

This is a big question, but what specific lessons can we learn from those challenges?

Annette Holliday

It is a big question. In my organisation, I was involved in rolling out training on the national practice model. We had two-day training for health visitors, and there was then an expectation in the organisation that people would go off and start to implement the model. However, we quickly realised that that would not happen, and we are still embedding the change. The issue comes down to things such as the need for more supervision at times of change, the case-load management decisions that are made and perhaps a need for more audit. There are huge resource implications. After that organisational training, we also had the wider NES training, but it is still not fully embedded.

Professor van Woerden

I will reflect on training more widely. It is very simple to train somebody to ask a child, “Can you count from one to five?” because the child either can or cannot do that. As was referred to in the previous panel, with tests such as the SHANARRI assessment, there is always a risk of what are called false positives and false negatives. In other words, the risk is that there is a problem but you do not spot it, or you think that there is a problem but there is not one. The challenge is that people are trying to deal with that across the SHANARRI indicators—safe, healthy, achieving, nurtured, active, respected, responsible and included. One of the challenges with the test is whether it is administered identically by all people with the same thresholds. I do not know whether any academic work has been done on SHANARRI to explore whether there is inter-individual variation in the threshold of assessment of wellbeing. One of the challenges of training is how we train people for tests that are not simple ones involving whether a strip turns pink or blue.

Ruth Maguire

The professionals who we are speaking about who are involved in child development make judgments on that anyway, based on the situation. It is not always black and white, is it?

Professor van Woerden

Absolutely.

Professor McCallum

To build on Professor van Woerden’s point, in line with best educational practice, to ensure that everyone can practise at the level that we would expect them to most of the time, seven and a half hours of training will provide awareness raising and highlight gaps in confidence and on-going skills, but those gaps will then need to be filled using scenarios to test decision making and support systems that allow people to have their decision making checked out. There also needs to be on-going support as new scenarios and new evidence come along that people need to learn from. For me, it is important that there is a comprehensive programme that links with early intervention, prevention and support. Even as a marginal additional intervention, seven and a half hours of training will give us only a false sense of security.

11:30

The Convener

I have a question on an issue that might be in Jean Cowie’s area of expertise. When new things come in and training regimes are put in place, do they not eventually just become part of the educators’ role or part of the role of whoever is responsible for training in an organisation? Do they not become part of the overall training rather than stand-alone training?

Jean Cowie

With the introduction of the health visiting pathway, for example, we provided continuing professional development days to upskill the workforce. However, as Alison McCallum said, that is more about awareness raising, and we expect practitioners to go and learn more. We had sessions with the educators on the health visiting courses in Scotland to ensure that the courses addressed the key requirements and priorities for Scotland and the pathway at that time, and the 2014 act was part of that. However, as Annette Holliday pointed out, that was a couple of years ago, and the training needs to be constantly revisited and updated.

The Convener

Eventually—again using your role as an example—the training will become part of the training for new recruits into nursing or whatever.

Jean Cowie

Yes, that will happen over time, but it will probably take quite a while for it to be integrated properly.

Lorna Greene

The word “comprehensive” was used earlier, but a comprehensive approach is missing in what we have seen so far on the training that will be provided. It feels as though it will be a pretty one-off process, and we are not reassured that there will be something comprehensive to back that up to ensure delivery going forward. Annette Holliday mentioned resources, which are massively important when we talk about training, not just for funding the training but to ensure that, when people undertake CPD or further training, backfill or cover is available.

If we introduce 500 new health visitors into the workforce, they will need supervision as they do their day-to-day job, because they will be new to the role. Although they will be well trained, that supervision will be important as they carry out their job, and the resources that are put into the profession will have an impact on that.

Ross Greer (West Scotland) (Green)

I have a question on the back of Lorna Greene’s point about the need for adequate resourcing of training. The financial memorandum for the bill sets out that there will be just under £1 million for health boards for the training. Is that adequate?

Annette Holliday

Unite’s written submission said that around 800 extra health visitors will be required to deliver the increased contacts in the universal pathway and to allow best practice to happen, rather than the 500 that the Government has set out.

Lorna Greene

There could be an impact on services’ budgets. One-off funding will be provided for training, but where will the funding come from for on-going training or training for professionals other than health visitors who might be impacted by the named person role? It might have to be found from within services, which would be challenging at a time when resources are very tight.

Professor van Woerden

This does not answer the question directly, but I think that part of the modelling is the assumption that, where an intervention is required, that will on average involve, I think, 10 hours. For early prevention to work, there must first be what I call a latent phase when something is not too bad a problem but can be detected, and it then has to be detected. When it is detected, something has to be done about it that makes a real difference—in other words, an intervention that changes the trajectory for the child. The important bit is not so much the detection but the intervention thereafter that sets the child on a better trajectory.

Ross Greer

Going back to the 2014 act, do you believe that there is adequate training for practitioners who are involved but who are not the named person, such as those who share information with the named person?

Annette Holliday

I do not think that the 2014 act went wide enough. At the time, the approach was about trying to train the people who would be named persons, but other health colleagues are still not fully trained in GIRFEC. That perhaps goes back to Ruth Maguire’s point. When child protection first came in, it had to go beyond women and children—it had to be recognised as board wide and an all-services issue—and perhaps when we talk about “wellbeing” the same should apply.

Valerie White

Training for general dental practitioners and dental teams is provided by NHS Education for Scotland, but that is only the tip of the iceberg. The issue is on-going and we need local training on local systems. Training does not happen just at a high level; it filters right down through the whole system and needs to involve all professionals, too.

Annette Holliday

Is the £1 million of funding for training recurring or non-recurring?

Ross Greer

I understand that the £1 million is for 2018-19 and is a one-off payment.

The Convener

Thank you, Ross. Oliver Mundell wants to come in.

Oliver Mundell

I will start with a simple question. From a professional point of view, is the bill as it is currently drafted easier or harder to understand than the original legislation?

Professor van Woerden

It is positive in that its aspiration to give children in Scotland world-class development is very clear and is a fantastic aspiration to have. The clarifications have come as a result of the Supreme Court’s ruling. Generally speaking, it is a positive thing but there is huge complexity underpinning it, which many people have alluded to in different ways.

Lorna Greene

The RCN is a supporter of GIRFEC and of the principle of the named person. We feel that the bill introduces vague concepts that we have talked about already, such as the duty to consider and the duty to identify. We do not feel that those are helpful concepts.

Oliver Mundell

Does it make the decision-making process more complicated for professionals than the original act did? Does it add to the burden of complexity and difficulty for professionals?

Lorna Greene

It is difficult to comment on that. The parts of the original act that referred to information sharing were deemed not to fit in with human rights law and European Union law; therefore, whether they were easy to understand is irrelevant because they were not lawful. That does not matter. What matters is that the bill that is in front of us now introduces vague concepts that we do not feel would necessarily aid professionals in providing a meaningful service that would achieve the best possible results through a named person service.

Oliver Mundell

Thank you very much.

I have one further question on the recording of evidence and decisions. You have talked about supervision and the need for consistency across different services, with people making the same decisions every time. How can you achieve that consistency without looking at the decisions that are being made and the information that people have decided not to share? How can someone supervise that process without understanding the decisions that have been made?

Professor van Woerden

It is complex, as you know. The area that I tried to highlight in my submission as being particularly complex involves teenagers. The question is whether a teenager is competent to give consent on their own behalf. That is one of the areas in which professionals would have to make decisions. There was a slight unintended mixed message in what was being said in that, by considering the wellbeing of a teenager, one was, in effect, saying that the teenager was not competent to consider and look after their own wellbeing. At the same time, one might say that the teenager was competent to make a decision about consent. With children under the age of 12, there is a difference such that that is not the case.

One potential solution, which might clarify the situation, would be for GIRFEC to apply up to the age of 12 and not to teenagers. An alternative solution that would reduce the mixed message would be to say that, if somebody is not competent to look after their own wellbeing, they are not competent to give consent either.

Valerie White

From a practitioner’s perspective, I do not think that the legislation will ever be clear; it will always be complex. It is underpinned by guidance that is supported by the key stakeholders for the professions—in dentistry, that is the General Dental Council—and the defence organisations. By its nature, the legislation will always be complex and difficult to interpret, so it will probably be really important that the underpinning even below the code of practice is in place and agreed by key stakeholders, so that we are all singing off the same song sheet.

Oliver Mundell

Lorna Greene mentioned the press interest in the matter and the negative media attention. If the bill is passed and implemented, will there be considerable interest in the decision-making procedures below the legislative framework? If something goes wrong, will the focus of attention be on the recording and sharing of information and the decisions that are made at a local level?

Lorna Greene

That is a difficult question to answer, because I do not know what will happen with the bill down the line. We mentioned the media coverage and flagged it to the GIRFEC team because we were aware of the impact that it would have on our members, who are trying to do their job. To do that, they need to be trusted by the people whose doorsteps they turn up on to deliver care and support. Whatever happens with the bill, we want actions that make it clear that health visitors provide care and support through building trust and meaningful relationships with the people who use their services. I do not know which way the media will go with the matter following on from the bill. We want the GIRFEC team to promote the positive messages and underline why health visiting and the named person role can be meaningful.

Clare Haughey

I was struck by the Unite submission, which says:

“Unite the Union are dismayed by the approach that many in public life have taken during this debate with the Named Person becoming the rope in a political tug of war. The well-being of the child and the professionals identified as the Named Person being the potential casualties in a battle of political dogma. Ultimately it will not be a politician who has to argue the merits of the Named Person but a clinician establishing a relationship with a child and their family.”

That is an important point to make. You guys are out there at the coalface, working with families, so you have to develop a trusting relationship. We must be mindful of that.

Tavish Scott

The converse of that is that the witnesses expect us to pass legislation that works but, as they all said, the code of practice, in effect, does not exist because the draft is going to change, so we cannot do our jobs. I get the point about the need to pass sensible legislation that can work, but I am worried about passing legislation when we do not know the basis of it because we do not yet have the code of practice. The witnesses have confirmed that today. What do they want us to do—pass legislation that they know has failings in it or wait and ask the Government to get it right when everything else has been sorted out?

The Convener

I am not convinced that that is a question for the witnesses to answer. It is a fair point to raise, but I do not think that the committee is trying to propose legislation when we do not know what it is about.

Tavish Scott

In that case, I am not sure that I see the point of our being here.

Gillian Martin

I will ask about workload. The witnesses have covered much of what I would have asked about. Am I right in thinking that there is an issue about having to evidence things that ordinarily would be onerous to evidence for a bureaucracy that will steal time from the job that professionals should be doing?

We have talked about the illustrative code of practice, which I take as being intended to engender a conversation among professionals about what such a code could look like. I throw the question open to you: what would you like the code of practice to look like? How would you like to engage in the process so that the code of practice gets your support, given that you are the key stakeholders?

11:45

Professor van Woerden

The key point is that the code should emphasise that parents are the experts on their own children and that others stand alongside to help and support them in exercising their duties. As a society, we aspire to fantastic things for our kids and for the next generation of children who are growing up, but we do not want to pressure parents unduly by saying that they are failing unless their kid is right at the top in everything. We need a sense that the parent is the expert and that the system comes along to be supportive and encouraging and to help to maximise the achievements of every child.

Annette Holliday

Unite wants consistency and clarity for its members, with every practitioner across Scotland working to the same code of practice rather than following different variations. There might be local tweaks but, in general, there should be a clear, consistent message rather than a code that is based on a load of legal speak that we do not understand because we are health visitors and not lawyers.

Lorna Greene

As I said, we have not engaged on the code of practice because it is illustrative and will change and because we do not support the bill. The RCN would like the Scottish Government to consider more carefully the merits of allowing best practice, in line with data protection law and European law and in a manner that is compatible with the European convention on human rights, to be the basis for information-sharing provisions. We think that, with the right guidance and training, professionals can be trusted and expected to deliver a high-quality and consistent named person service. Services across Scotland are already delivered in line with standards and in accordance with best practice as laid out in guidance. We do not see why the situation would not be the same in this case.

Professor McCallum

I am keen that the aspiration that we all have for our children and young people to achieve their potential is realised. That requires an infrastructure that enables information sharing to allow professionals to do their jobs, to deliver universal services and to ensure that practitioners can work with colleagues from other disciplines to deliver high-quality services. We must be able to share information in order to do our jobs to the standard that the people of Scotland require. Any legislation must support that work and not get in the way.

Gillian Martin

Given that you already have to record an awful lot of what you do on the ground, and given that the new considerations might have to be evidenced in some way, can you say, “Look—we are already doing this. We have this covered and don’t need a bureaucratic layer on top”? You are largely recording such information now, particularly in the Highlands, where that has been happening for a very long time.

The Convener

Does anyone want to respond to that?

Valerie White

Currently, a general dental practitioner will write notes, so they would have to add a line to their notes to say, “I have considered this”. It would become part of the record-keeping process. However, if everything was okay and they did not think that there was anything that they needed to consider, would they still have to write that down?

Gillian Martin

I suppose that that is where the code of practice would come in.

Valerie White

Yes.

Gillian Martin

Thank you very much.

Johann Lamont

I was interested in Dr McCallum’s point about the legislation not getting in the way of people doing their job. The RCN has basically said that the bill does not help, and other folk have talked about the extra burden. It all feels very complicated. Is there a point at which we say that all this very technical debate is getting in the road? If somebody has not only to make a decision but to show evidence that they have thought about it—considered it and decided in which categories they have to consider it—at what point do we say that that is getting in the road? What would be the test for that?

Professor McCallum

At the moment, practitioners document what they do in line with their professional standards so that they can have conversations with their supervisors, and they write clinical notes in order to deliver a service, as I and others would. I do not think that the duty to consider provides much of an additional burden to that.

The concern is with the legal way in which the code of practice is written. I understand why it is written in that way, but it feels as though we would be held to legal evidential standards for everything that we write, rather than just documenting the situation, the things that we have discussed with the child and family, what we think the next steps are and who else we need to involve. If the approach moves on from that to being something that has to be to a standard that is testable in court, that is when it moves from being good practice to being an additional bureaucratic burden.

Johann Lamont

There is a duty to consider, so you will have to give evidence that you have considered sharing information, and you will have to know in what circumstances that duty applies. There is no getting away from that. Will that get in the way of you doing what makes perfect sense to me, which, as you said, is looking at the situation and identifying who you need to speak to about it to highlight concerns? I presume that there are circumstances in which, as I mentioned to the earlier panel, there is a conflict between the interests of the child and the practice of the parent or what the parent is doing.

Professor McCallum

Such things are heavily documented, because they involve the sort of complex professional judgments that people want to talk to their professional supervisor or line manager about in order to get additional help. My understanding is that a code of practice can be for the purposes of providing additional evidence and support to lawyers and the Government about how a bill is enacted, but when we talk about codes of practice, we tend to think of codes that show how legislation turns into something that we can use to help children and families. Currently, the code of practice is written to help lawyers and I understand why, but I think that we are all saying that there cannot be a division between the things that are written to help lawyers and the Government to enact the legislation and the things that we need in order to do our job. Those things have to be perfectly aligned and they are not quite there yet.

Johann Lamont

Do you see it as the code of practice’s purpose to identify how you fulfil your duty under the legislation?

Professor McCallum

Yes.

Johann Lamont

The current code does not define good practice in the sense that we would normally expect.

Professor McCallum

No.

Johann Lamont

It is about the obligation. I wonder whether that will get in the road of good practice, because it is a legal test that you will be facing.

Professor van Woerden

It is particularly important that the guidance has proportionality. Let us imagine that a health visitor comes in and says, “Your kid is a wee bit slow at speaking. I am going to refer you to the speech and language therapist.” For 95 per cent of the time, the parent would say, “Wonderful. I am so pleased. Thank you so much.” The difficulty comes when the parent says, “Oh, speech and language therapists. I think they are total quacks. They are a waste of time.” Does that make sense? There has to be proportionality once you are into child protection.

The difficulty is that there is a spectrum. Most parents want to ensure the wellbeing of their child and have no contention at all with professionals; that is the case 95 per cent of the time. The challenge comes with distinguishing what I would describe as idiosyncratic parenting from poor or harmful parenting; there is a gradient and it is about demonstrating how, proportionately, one has considered the child’s needs, the need to communicate with other professionals about the child’s needs, and the varying extent to which that would be documented.

Daniel Johnson

On the point about wellbeing, the SHANARRI indicators cover things such as a child’s being “included” and “achieving”. Surely that brings differences of opinion much more squarely into scope, perhaps in more than 5 per cent of cases. For example, one parent might think that a child should speak up all the time, and another might think that a child should listen first and then speak—I am not saying that that would be flagged up, but we can see that there might be consequences. How much of a concern is that?

Professor van Woerden

I am 100 per cent behind the aspiration of the Scottish Government. We want our children to do well. We want to be able to make a holistic assessment of the child, and we want to push forward every boundary of the child’s wellbeing.

The challenge for me as an academic is that, as far as I am aware, SHANARRI has not been through some test of its sensitivity and specificity—if I may use the technical terms. That raises questions about its capacity to differentiate in such circumstances.

Let me give the committee a crazy example. Let us say that Johnny is a seven-year-old whose dad died trying to blaze a new route up Mount Everest. Johnny falls out of a tree and has a hairline fracture to his arm. Accident and emergency sends a wee form to the named person to say that Johnny fell out of a tree, and the social worker says to Johnny’s mum, “You need to be a bit careful about Johnny’s climbing.” Mum then says, “Johnny is going to do what his father could not do and blaze that trail up Mount Everest.” That is idiosyncratic parenting in which dangerous activity is highly valued.

In terms of early prevention, Johnny’s climbing is probably a latent phase—he will probably do a lot of dangerous climbing in the future, and we might say that there is a higher risk that the child will die while mountaineering. Is there an effective intervention in that situation, and is the parenting poor to a level that requires intervention? There are a bunch of complex questions in such an example.

Daniel Johnson

That is a helpful hypothetical situation.

The Convener

I do not think that any of us has an answer to it.

Colin Beattie

It is almost inevitable nowadays that people who deal with the public will face a complaint at some point. In relation to health organisations, should there be a complaints procedure for the named person service? Is the existing remedy of recourse to the Scottish Public Services Ombudsman adequate?

Valerie White

Speaking as an individual, I see no need for another complaints system.

Colin Beattie

In your experience of it, if you have any, does the SPSO work as well as it should?

Professor van Woerden

I can give an individual view. Whether a complaint is of nature A, B or C, as long as the complaints process can flex across all situations, I think that there are more dangers in creating an alternative mechanism than there are in sticking to established mechanisms.

Colin Beattie

How do we ensure that the consent that you receive is explicit and is as easy to withdraw as it is to give? Is there already a mechanism for that or does more work need to be done? What is your experience? I can imagine a situation in which a parent withdrew consent. How would you deal with that?

Lorna Greene

Are you asking specifically in relation to the named person?

Colin Beattie

I am asking in relation to the named person, but you might also reflect on your current process.

12:00

Lorna Greene

As I said, I am not a practitioner, so I am not a clinician who delivers care in that sense. However, in relation to the named person and what you said about withdrawing consent, it is clear that children and their families are under no obligation to engage with the named person service if they do not want to or if they have changed their minds about it. GIRFEC guidance is clear that there should be no problem if consent is withdrawn from the named person and there is no involvement with child protection.

Colin Beattie

What would be the mechanism for withdrawing consent? You have said that consent is not always in writing and is sometimes implied.

Lorna Greene

I imagine that that is why robust guidance on the matter will be needed—whether that is in relation to best practice or whether that is dealt with in the final stages of the bill. Either way, there will need to be robust guidance that outlines the position clearly to the practitioner. Families need to be absolutely aware that they are not obliged to take part in the named person service and can end their participation in it at any point. That is what the GIRFEC team has said and it will need to make that clear when implementation happens.

Professor van Woerden

Caldicott has been mentioned. I am a Caldicott guardian for NHS Highland and I know that there is a lot of on-going work on information sharing. Dame Fiona Caldicott has produced three reports over the past decade and more; the most recent is the national data guardian for health and care’s “Review of Data Security, Consent and Opt-Outs”, which she produced last year. It considers the issues in relation to health. She does not provide total answers but, for example, her recommendation 11 states:

“There should be a new consent/opt-out model to allow people to opt out of their personal confidential data being used for purposes beyond their direct care.”

The issue is bubbling in all care areas and it relates to the new European legislation that will come into play to replace the Data Protection Act 1998.

Colin Beattie

So that is all still developing.

Professor van Woerden

At one level, it will always be developing, because technology is changing so fast. That is about technological changes such as cloud storage of data and so on that mean that there is an on-going scenario of change—it will always be a dynamic area.

The Convener

I have one last question. The issue of guidance has come up a lot from just about everybody. The committee surveyed local authorities and health authorities and found that more than three quarters of them agreed that their organisation should provide further guidance on when information could be shared. I know that Perth and Kinross Council has a child protection committee. Have any witnesses looked at the Perth and Kinross example or similar examples to identify best practice and how guidance has been rolled out? I accept that that roll-out had to stop because of where we are now, but it did take place.

Professor McCallum

We looked at Perth and Kinross as our data-sharing partnership was developing guidance in the area. We have multi-agency child protection guidance and guidance for persons caring for adults whose children are vulnerable, and similarly with adults.

There is overarching agreement between agencies, and individual agreements for the purposes of delivering particular services. That means that we can say to—in this case—children and families, “This is how we do our business. This is what the team around the child looks like.” If consent was withdrawn for a particular agency, that person would not be part of the team around the child and everybody else would just have to fill in. We do not see that changing in practice and we see the named person idea as strengthening practice and perhaps ensuring less confusion in complex situations.

The Convener

So it could be possible for organisations to roll out guidance once it becomes available.

Professor McCallum

Some organisations have the infrastructure in place, but not all do.

The Convener

Thank you very much. That brings us to the end of the session. I thank you all for your helpful evidence.

Third meeting transcript

The Convener (James Dornan)

I welcome everyone to the 24th meeting in 2017 of the Education and Skills Committee. I remind everyone present to turn their mobile phones and other devices to silent for the duration of the meeting.

Tavish Scott will join us, but he will be a few minutes late. Daniel Johnson has given his apologies, as he is unwell.

The first item of business is an evidence session on the Children and Young People (Information Sharing) (Scotland) Bill. This is the third meeting at which we will consider the bill; we have already heard from the Scottish Government’s bill team, members of the legal profession and the national health service. This morning’s panel will focus on services that local authorities provide, including education and social work.

I welcome Dr Gary Clapton, who is senior lecturer in social work in the school of social and political science at the University of Edinburgh; Andrew Keir, who is getting it right for every child manager at North Ayrshire health and social care partnership; Jackie Niccolls, who is a team leader for social work services at Glasgow City health and social care partnership; and Jenni Brown, who is principal teacher of pupil support at Dumfries and Galloway Council education services.

If the witnesses would like to respond to a question, they should indicate that to me or to the clerk, please, and I will call them to speak. Ross Greer will open the questioning.

Ross Greer (West Scotland) (Green)

To begin with, it would be useful to know the current state of play with the implementation of GIRFEC and the named person scheme in your local authorities.

Jackie Niccolls (Glasgow City Health and Social Care Partnership)

GIRFEC is woven into all our policies and procedures, but the named person scheme has not been implemented in any meaningful way. A proof-of-concept hub was started last year, but that was abandoned in light of the Supreme Court ruling, so Glasgow employees—particularly social work employees—do not have a lot of experience of the named person scheme and its potential impact on service delivery.

Andrew Keir (North Ayrshire Health and Social Care Partnership)

In North Ayrshire, the getting it right for every child approach has been around since 2005—I think that that is the date of the first document in which we mentioned it. We have used the term “named person”, but we have not taken forward the specific functions that are spelled out in the Children and Young People (Scotland) Act 2014; people have been named persons in name only.

Until last year, we were developing a physical named person service in our headquarters. Initially, we thought that that would be a good vehicle to support named persons to share concerns with other professionals, but we put a stop to that because we were unclear about information sharing, and we reverted to the position under the Data Protection Act 1998—well, we did not revert to that; we have always kept to that act and shared information with consent.

At the moment, the sole function of named persons is to manage requests for assistance. If a family request assistance from a named person, that request will come to the hub, which will either route it to a particular service or try to find a service to support the child. It is a consent-based model only. We are not sharing information; it is only about families saying, “I need this sort of help.”

Jenni Brown (Dumfries and Galloway Council)

In Dumfries and Galloway, we are quite far down the road with GIRFEC, certainly in education. We have used the named person idea in education for probably the past three years, and we have shared information to some extent. A little like North Ayrshire, we had plans to set up a hub that information could come into and be routed out of into different agencies. That was put on hold when the Children and Young People (Scotland) Act 2014 was not implemented. That is how we run our policy and look after our pupils in education in Dumfries and Galloway. Although we do not have the back-up of the act actually having been implemented, everything in terms of a pupil in a school goes through a named person, and information from other agencies is shared to some extent.

Andrew Keir

I worry a little when we talk about implementation of GIRFEC. For me, GIRFEC is not a thing but a set of values and principles, a way of working and a culture, and a set of practices and systems. We have all been trying to take that approach, and we have focused especially on culture. We made the mistake of thinking that we could just construct some systems, but that will not work if we do not change the culture. We have therefore tried to enforce the values and principles by going back to the beginning and considering what GIRFEC is about rather than worrying too much at present about the systems around it.

Dr Gary Clapton (University of Edinburgh)

I can speak at second hand about the experiences of my students in the local authorities in which we run placements. I agree with Andrew Keir. From what I hear, GIRFEC is very much part of my students’ placement experiences but, to date, the named person scheme has not been.

Ross Greer

Have the debate over the past year and the uncertainty about the scheme affected current practice for sharing information that falls below the child protection threshold?

Jackie Niccolls

They have in Glasgow. The pilot for the hub scheme caused a bit of confusion. Information was sent direct to the hub, and in some cases a child’s allocated social worker was not informed about an incident that had occurred.

In addition, the practice of providing information became more defensive. In one example, the police rightly shared a notice of concern because children had been removed to family over a weekend because of an incident in the family home, but they would not provide social workers with the grandmother’s phone number. Their view was that the information should be provided on a need-to-know basis. They had told us about the incident, and we had the address, so we could go there. That was probably just an overzealous implementation of the need-to-know aspect of information sharing. That is one example, but there were similar experiences in which we encountered a reticence to share information that would have been helpful in enabling us to check on the welfare of children.

Andrew Keir

In our experience in North Ayrshire, we have wasted a lot of valuable time. When we implement an act or statutory guidance, we obviously do not wait until the last minute—the midnight hour—to train our staff, produce materials and have people ready for implementation. We had a long time—it was possibly a year—before the 2014 act was due to be implemented. We produced materials that were based on what was in the act and what was written about information sharing at that time, and we trained all our named persons. We now have to go and unpick all that, I guess, and go back to the status quo on information sharing under the 1998 act. There has been a lot of wasted time for us.

The Convener

I am sure that that was not done deliberately by anybody.

Jenni Brown

I was seconded from our education department as a GIRFEC support officer last year. The officer’s role partly involved training staff, but we also took phone calls in an advisory capacity, most of which were about whether information at the level just below child protection should be shared. Staff felt vulnerable and were very wary of sharing information in circumstances in which they had perhaps been more willing to share previously. There was concern about people being held personally liable.

I do not know how much members know about the SEEMiS wellbeing software program, which we use in education to record pastoral notes and form chronologies on pupils. The need to ensure that the topic of consent is discussed in relation to an assessment of a child is built into that new program, which I believe has been rolled out across the whole of Scotland. When we went through the training, staff expressed concern that they would be held personally liable, because we had to state whether we had consent and what the views of the parent and child were, and we had to date that information.

Ross Greer

How much of a change from current practice does the duty to consider represent in your authorities?

Jackie Niccolls

From a social work perspective, it does not represent much of a change at all. Day and daily, we take in information, process it and decide what information it is appropriate to share and who it is appropriate to share it with. We might inform education services of an incident that we believe has caused a child trauma, but we might withhold some of the details that the police provided to us if others do not need to have those in-depth details. I do not see that as a shift at all.

Andrew Keir

I reiterate that. I work across the partnership with colleagues in social work, health and education. Practitioners have always considered what information it might be relevant to share. However, the duty to consider might have an impact on adult services, such as in cases in which a family who are involved with addiction services or mental health services have a dependant child. It might help adult services to consider the impact on that child and what to do with that information. There might therefore be an advantage of the duty to consider for adult services. However, that is already part of the psyche for principal lead professionals in social work.

Dr Clapton

I agree. One of the main principles that we teach in social work is that partnership with parents is the ne plus ultra of good social work practice. One of the concerns about the named person scheme that still hangs in the air is that it was about parents rather than for parents. That phrase has hung around. Many of the social work students with whom I work have talked about that, because it butts against basic social work values about partnership. The duty to consider is part of what we do; it is, as Andrew Keir said, part of our psyche.

Jenni Brown

In education, staff consider very carefully whether to share, and that has always been the case.

Johann Lamont (Glasgow) (Lab)

If there was a duty to consider in law, would there be a different expectation about providing evidence of what you had considered? I presume that you do consider information as professionals, but you would not necessarily have to record that in the way that you would be asked to under the duty to consider. Alternatively, would there be no difference?

Andrew Keir

Information comes to practitioners all the time. The difficulty would arise in knowing when to record that they had either decided to share or decided not to share. That could become a bureaucratic nightmare. It would be resource intensive if, every time a practitioner received information and thought about whether to share it, they had to record why they had or had not shared it. I do not know where the threshold would be for recording all that.

Liz Smith (Mid Scotland and Fife) (Con)

I seek your comments on evidence that we took previously. Three weeks ago, the bill team told us that the concept of wellbeing was well utilised and well understood. Last week, witnesses from the legal profession and other witnesses representing the Royal College of Nursing and various other professionals told us that they did not agree with that. What is your perspective on it?

Jackie Niccolls

I know that, when I studied the 2014 act, legal services were critical of the shift away from the term “welfare”, which was easily defined in legal terms. In legal terms, “wellbeing” remains a bit of an unknown. Practitioners are quite clear about the holistic needs of the child that are incorporated in the term “wellbeing.” It is not necessarily child protection; there may be more of an understanding at a front-line practitioner’s level than can be taken into the legal system.

10:15

Liz Smith

You have raised a very interesting point. Given your answers to Ross Greer, do you feel that there is a need for the named person policy? The implication is that you are highly professional in how you approach things already in terms of GIRFEC and working through the system, so do we need a named person policy at all?

Jackie Niccolls

I am aware that, as a social work representative, I am dealing with only a relatively small number of Scotland’s children—although it does not always feel like that. When I am speaking about my involvement, it is in relation to that small group of children who come into the social work arena.

I do not think that anybody could argue with the principle of the named person scheme. In our understanding of adverse childhood experiences and the impact of trauma on children, it is well documented that the presence of one consistent person can ameliorate the negative impact of those experiences.

My worry is that, as long as being a named person is an additional task for a teacher or a health visitor, it may not be as meaningful. If we are serious about it, can it be someone’s job to be a named person? They could have a group of children they are the named person for and that is what they do.

Liz Smith

Everybody has agreed that the most important focus here is our most vulnerable children—that has come across loud and clear in all the evidence, irrespective of whether people are for or against the named person element. However, if you feel that the professional standards that are used by practitioners are working well enough without the named person element of GIRFEC, that brings into question whether it is right to have this new bill and to have a different code of practice. I am interested in your views as practitioners who know far more about this on the front line than we do.

Jackie Niccolls

I did a presentation to a group of practitioners on the named person scheme and I think that they would all say that they can see the merit in having a named person, but not for their child. That is the bottom line—people will say, “Oh, yes, I can see it being very useful, but not for my child—not for my grandchild. I don’t need that—I don’t need a named person.”

Liz Smith

Why do you think that they are saying that?

Jackie Niccolls

Because they believe that, as parents or grandparents, they are among the group of adults who hold the wellbeing of their particular child as the priority. Unfortunately, we know that that is not the case for every child in Scotland. We also know that not every child who is not having that positive experience is known to social work. The named person would be useful for vulnerable children who may not be identified as quickly.

Gillian Martin (Aberdeenshire East) (SNP)

I will pick up on that. We were looking at it from the parents’ perspective there but, from a child’s perspective, the named person provides a single point of contact. The child might otherwise have difficulty in knowing who to go to to unlock a whole lot of services. That is a major part of the named person’s role. Do you see that being affected at all by the proposed change?

Jackie Niccolls

In terms of information sharing?

Gillian Martin

Yes.

Jackie Niccolls

It is a little more difficult for me to comment on the named person. I am speaking as a social work practitioner with limited experience of the role and responsibilities of the named person, so I am not entirely sure what the parameters of that role will be.

Gillian Martin

It may be a better question for Jenni Brown, given that she will be a named person, no doubt.

Jenni Brown

Sorry—can you repeat your original point?

Gillian Martin

We have been talking about this so far largely in relation to the impact that it has on parents and those who become a named person, but the whole ethos of having a named person is for a child to have a single point of contact.

Jenni Brown

Education possibly had that ethos anyway, with a principal teacher for pupil support—we talked about that earlier. The principles that are aligned with GIRFEC are all good, such as looking at the child holistically and early intervention. A good pupil support teacher probably did those things anyway and was a good point of contact. Education is currently emphasising nurturing principles, which all work together. It probably could work—as it did work—without the named person role being there.

Gillian Martin

What do you want to happen now for clarity with regard to the code of practice, for example? This is your opportunity to feed into a forum about what practitioners want from the code of practice.

Jenni Brown

I want something that is very straightforward and backs up professional judgment, which is very sound most of the time. It is based on putting the child at the centre and doing the best for the child. I want the code to back up the decisions that are currently being made and make sure that a teacher is not exposed to legal retribution in whatever way.

It has to be done in a very straightforward manner. Teachers are extremely busy; the environment is constantly changing with regard to exams and other things. This scheme is an additional workload; for secondary school teachers in particular, exams are at the core of what they do.

Gillian Martin

You have just said that you are in effect already doing what a named person will do, so why do you see it as an additional workload? What aspect do you see as onerous?

Jenni Brown

The child’s plan process that comes with the named person scheme is additional. It has pretty much always been the case that there has been an individual who could be approached by a child and who has an overview on everything that is happening in the child’s life.

Gillian Martin

I ask for the social work point of view. You engage with schools. What do you want to see from the code of practice?

Jackie Niccolls

I do not think that the code of practice needs to be in legislation. It needs to be robust. I looked at the draft code for what it says on the perennial issue for services of information sharing. The last item in the list in the code, which is about whether a decision is in

“the best interests of the child”,

comes back, again, to professional judgment. We have discussed that; as the document says, it is the responsibility of the local authority, not of the named person as an individual. The named person needs to be aware that, ultimately, they are not going to be personally liable if they share information or, indeed, do not share information. They need guidance about what information can be shared.

Andrew Keir

On the question of having a named person policy, the concept of having a named person to co-ordinate at a lower level is a fantastic idea. We need someone to co-ordinate support for those children who need it. The difficulty comes from how we interpret “wellbeing”. From one practitioner to another, they may have very different views of what it means to be respected or responsible or anything else, dependent on their personal and professional experience. The concept of wellbeing has its difficulties for interpretation and thresholds.

However, like my colleague, I do not think that we need to have the code linked to legislation. We seem to have forgotten about the practice around getting it right for every child. There is a practice model with five practitioner questions—what is getting in the way of this child’s wellbeing? What information do I need? What can I do? What can my agency do? What help do I need from others?

We need to attach to the robust guidance examples of what that might look like in practice, linked to GIRFEC. We seem to have disassociated ourselves from GIRFEC and taken a legal route. I would like to us to come back to having a robust practice document around the established national practice model questions and processes rather than having a legislative document. This would then become real to practitioners and they would know when and at what points they needed to share. To be honest, if I am in the field and I am busy, I do not have time to answer someone who says, “Andrew, does that comply with schedule 2?” I need something very quick that I can make sense of.

Dr Clapton

The benign element of the named person scheme seems to have been lost in the mists of time, with all the discussions and debates that have taken place in the past couple of years. It strikes me that one of the challenges is articulating the added value that the scheme brings to the table of existing services, such as headteachers and health visitors.

As Andrew Keir said, we missed an opportunity to articulate things. “Wellbeing” remains undefined. There are eight safe, healthy, achieving, nurtured, active, respected, responsible and included—SHANARRI—indicators, but there are 269 sub-indicators, and they have grown arms and legs; some of the definitions are very technical. One is “laughs a lot”. One of the main concerns that I expressed in my written submission is that that increasing thicket of indicators might lower the threshold for intervention, and mistrust might therefore develop.

Existing child protection procedures have their difficulties, but they are fairly well articulated—we have the children’s hearings system, definitions of abuse and so on—but when we start to move wellbeing on to the table, things become messy and conflated. That is a major challenge.

The Convener

I will bring in Oliver Mundell very briefly.

Oliver Mundell (Dumfriesshire) (Con)

Andrew Keir said that a code of practice should not be in legislation. The problem is that the Supreme Court asked for some of these things to be legislated on so that they are clear in law. I just do not see how it is possible to match up what professionals need and the legal certainty that people need. The Scottish Government says that it is difficult to put that in primary legislation because such legislation would need to be very precise and specific and to cover all the different possibilities.

Andrew Keir

I just do not see what the bill gives us in addition to what we already have in the Data Protection Act 1998 and the Human Rights Act 1998, apart from the duty to consider sharing information. Why legislate when legislation is already in place? All we are saying is, “Refer to this legislation.” That is an argument for legal services, but practitioners need something very simple. It cannot be prescriptive, because every single situation is different and people’s lives are different.

That goes back to the point about wellbeing. When we compartmentalise ourselves into indicators, we lose subjective wellbeing. We can look at subjective wellbeing as having two elements. The first is personal wellbeing—things such as how a child feels about themselves, their resilience, their identity and their belonging, which SHANARRI does not really give us. The second is social wellbeing: what is their community like? Do they have trusted adults? What are their relationships like? Again, I do not think that SHANARRI gives us those things. When we consider sharing, practitioners do not just look at wellbeing in those very narrow SHANARRI terms; they look at other things that impact wellbeing and then decide whether to share.

I think that the code should be put in legislation as long as it does not confuse practitioners—however, it is confusing them now. Practitioners are retreating back to thinking that they had better not share anything because they feel that they do not know where they are supposed to go to get their legal advice from. I think that that practitioner message is clear.

10:30

Ruth Maguire (Cunninghame South) (SNP)

I should draw folks’ attention to my entry in the register of members’ interests, as I am a former councillor on North Ayrshire Council.

We have taken quite a bit of evidence on the code of practice and I know that colleagues have touched on it. What I am hearing is that it needs to be clear and accessible and in language that is meaningful to all the practitioners who are involved with children and families.

To what extent are your views on the bill dependent on the content of the finalised code of practice?

Dr Clapton

I do not know.

Jackie Niccolls

What we think of the bill will absolutely hinge on the final code of practice. It is useful to debate that, but the finished article could sway our view of the bill in its entirety.

Andrew Keir

As it stands, the code is an illustrative draft. I think that if the final version is overly legalistic, it will have no impact on practitioners. The code of practice needs to have some meaningful triggers in it so that practitioners can say, “I know what questions I need to ask to be able to take this a step further.”

There is other material out there, from the Information Commissioner’s Office and others, with examples that walk you through what things you should consider and when in quite accessible language.

My plea would be to put the code of practice in a language that practitioners find easy to navigate and which is not overly legalistic. It comes back to the question of who the code of practice is for. I am not quite sure who it is for. Is it just for named persons? Is it for all practitioners who come into contact with children? I am unsure. The shape of the code of practice depends on who the audience is.

Jenni Brown

If information sharing is at the heart of this whole act and is about named persons working to advantage, this code of practice is right behind that. It has to be accessible, easy and quick to use. If it is to help named persons and support their decisions, it has to be straightforward, quick to read, flow chart-type information, otherwise, staff will not use it—they will not have the time to use it. It has to be very accessible.

Ruth Maguire

What involvement would you expect your organisations to have in forming a code of practice and what involvement have you had previously with this type of thing?

Andrew Keir

I would expect that each health and social care partnership and local authority would be consulted but, more than that, the legislators need to learn from practice experience. It would be good to have representations from practitioners at some point in that journey rather than just a consultation on the draft at the end.

The Convener

One thing that has come out of the evidence sessions is that the Government will have to listen to stakeholders about the code of practice. That is perfectly clear.

Oliver Mundell

The panel has talked about flow charts and making the code easy to understand. These are really difficult, complex legal questions, which is why the previous legislation wenft all the way to the Supreme Court and was weighed up at length, with the court balancing past cases and looking at different bits of legislation and how they interact.

Can that ever be explained in a flow chart? Will practitioners and people on the ground ever understand the intricacies around proportionality and how all the different bits of legislation fit in? Is it possible to simplify that and still meet the legislative standard?

Andrew Keir

It is difficult to simplify such a complex subject. It is not only the law that is complex; there are a lot of ambiguous terms in relation to what is required and what must be considered. What do terms such as “public interest” mean? Practitioners have to apply interpretations, whatever terminology we use. The bill uses the phrase “in its opinion”, but we all have different opinions. I do not think that the bill can make the position any clearer for us or make such decisions any easier. What will make things easier is training and a consistent message about when we need to ask certain questions.

To come back to the term “wellbeing”, people interpret that in different ways, and their thresholds are different. We need to build in a model whereby practitioners can ask someone for help. We want them to ask their managers or the named person service. There is no reason why any professional cannot pick up the phone to another and say, “Here is the situation with this child—what do you think we should do about it?” They can anonymise the case and seek assistance without disclosing any information about the child. We need to build in safeguards so that practitioners can get assistance in thinking a situation through. It is a complex area, and people have different thresholds. That is the difficulty.

The Convener

What suggests to you that the safeguards are not in place now? I suspect that that is how you work now—you phone a colleague and anonymise the situation. Why would anybody think that that does not happen?

Andrew Keir

I am suggesting that that is what happens. Why do we need an act if that is already happening?

The Convener

We needed a named person act, but we are here to discuss the effect of the Supreme Court’s decision. That is exactly what this session is about. We are here because the Supreme Court has told us to be here.

Andrew Keir

To take the practice forward, I need to be clear about the legislative landscape. I am sure about what the landscape is like now, but I do not know what it will be like in the future. We have to plan for the future and train our staff—that does not happen overnight. We have to prepare for it, so we need to know now.

We have such processes in place. My question is whether they will still be in place. If the answer is yes, why are we changing anything? We have the 1998 act, and processes are in place already. I do not understand why we need a new bill to tell us what we need to do in the future if we are doing it already.

Oliver Mundell

I think that the Government’s policy memorandum says that there are possible options to allow the named person scheme to continue without the bill at all.

I have one final question. You have said that you want more than consultation and that you want involvement in the process. As practitioners and people who are working in this field, do you find it odd or unusual that members of the Scottish Parliament will not have a vote or a formal say on the final code of practice? Do you find it unusual that it is not deemed necessary for the members of this committee, for example, to go through the code in detail? Given the importance of the code to the bill, would you expect members of the Parliament to have more of a direct say on whether it is signed off?

Dr Clapton

I think that you should have that, but I am not a practitioner—you can address the question to the practitioners.

Jackie Niccolls

I was not aware that MSPs would not have a final say or overview on signing off the code.

The Convener

A code of practice is normally drafted after a bill is passed, so the situation that we are looking at is unusual. We were given an illustrative code of practice to help us—it will be interesting to see whether we get one the next time a bill is introduced.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

Jenni Brown mentioned concerns about consent, which I will explore a bit more. To what degree are the witnesses aware of the changes under the general data protection regulation and their implications for practice on seeking consent for information sharing?

Jackie Niccolls

My knowledge of that matter is limited.

Jenni Brown

I am afraid that my knowledge of the legislation is limited, too.

Andrew Keir

The changes will strengthen the seeking of consent and the rights of children and adults. Consent is always a difficult issue. We should always have been asking for consent, unless that places the child at additional risk or there are criminal proceedings, for example.

It is always good practice to work alongside families in partnership. I do not know whether we can ever achieve full partnership with families, because we are in a different power differential as a result of the nature of what we do. In “Child Protection: Messages from Research”, Hedy Cleaver spoke of how practitioners can build that partnership and trust through honesty, integrity and so on. Once we have trust with families, consent is a lot easier to discuss, because it becomes part of the conversation rather than something that we spring on people. The issue is about getting support and help.

We should always ask for consent as a first port of call, and the GDPR will strengthen that. The issue then becomes how and where to record the consent and what to do if consent is refused. The Data Protection Act 1998 covers those issues with regard to the risk—or potential risk—of significant harm and the public interest. It is right and appropriate that consent is there, given people’s rights to participate.

Colin Beattie

I was struck that the Information Commissioner’s Office submission says that the GDPR means that

“a public authority will not be able to rely on consent as a legal basis for processing in any case where there is a clear imbalance between it and the individual to whom the data relate.”

Is that significantly different from where we are now?

Jenni Brown

I am not sure.

Andrew Keir

It is a hard question.

The Convener

Ask an easier question.

Colin Beattie

I will go on to an easier question. In the context of the named person service, how best can you ensure that consent is explicit, freely given and easy to withdraw after it is given?

Oliver Mundell

Is that question easier?

Jackie Niccolls

No—it is not any easier.

Jenni Brown

I think that I can answer. It is always easier when we have a relationship and have built up knowledge of the child and the parents, but that is not always in place.

Colin Beattie

Do you always get written consent? Is verbal consent satisfactory?

Jenni Brown

Schools are probably moving more to written consent, to consent for sharing and to naming who information will be shared with.

The Convener

The information commissioner will be at our meeting next week to address such questions.

Colin Beattie

I will certainly follow up that point.

Should the bill refer to consent, or is it enough for consent to be in the code of practice, which will be mandatory? Does that make any difference?

Andrew Keir

I do not want to speak too much. Whether consent should be in the bill depends on what it says about consent. A person should consent only in relation to particular information for a particular purpose. That is difficult in practice, because our intervention with a family is often multifaceted—we have different information at different times and might use it differently. It is difficult to record every time that we have a new piece of information that we want to share, perhaps for a different purpose. However, it is important to record that. Good luck with how you make sense of all that in the bill.

10:45

Colin Beattie

I will give you an easy final question. Should the bill include a requirement to consider the views of the child, young person or parent when you are considering whether to share the information?

Andrew Keir

The bill’s purpose is to enable consistency. I know that 99.9 per cent of practitioners would ask the child their views—although that depends on the child’s age and circumstances—but there will always be one practitioner who does not do that. I am not sure about having a blanket obligation. The requirement for consent and the child’s view should sit in the code of practice, rather than the legislation. If the code of practice is robust and clear enough, that should be sufficient.

Clare Haughey (Rutherglen) (SNP)

I will pick up on the point about current information-sharing practice that Jackie Niccolls and Jenni Brown talked about. How do you currently operate when you have information about a child you have concerns about?

Jackie Niccolls

I can give you my perspective as a social work front-line practitioner and manager—as I said, I am not a named person. As part of the intake team, I deal with referrals from members of the public and other agencies about children who are not allocated—they do not have a worker. We get referrals in a myriad of situations. For example, we get a lot of domestic abuse referrals from the police. We aim to inform the universal services that there has been an incident that children have witnessed or been nearby to and we use our discretion about how much detail to give.

Do you want me to comment on getting consent?

Clare Haughey

We are talking about consent and what accompanies it.

Jackie Niccolls

In a domestic abuse case, we always aim to speak to the victim, and we tell them that we will speak to the universal agencies that are involved in the child’s life. Depending on the nature of the incident, social work services could hold that information and never see the child, whereas their teachers see them five days a week, and having that information might impact on how teachers supported that child in the future.

I would seek the consent of the parent adviser. Sometimes families have very personal reasons for not wanting to inform the school—perhaps because the secretary is a neighbour. We use our discretion, perhaps by speaking only to the headteacher and not discussing the child’s name with anyone else at the school. We use our professional judgment all the time about how much information to give to protect children without infringing on people’s right to a private life.

Clare Haughey

So you currently do that and use your professional judgment.

Jackie Niccolls

Yes.

Clare Haughey

You already decide that information should be shared or that it should not be shared without consent. Is approaching someone for consent the first thing that you do?

Jackie Niccolls

Normally, the first thing that we do is check that the family are okay and, as part of that, we discuss the situation with the school. That is not always possible—sometimes we cannot make contact with the family, for whatever reason—so other agencies might well be approached before we gained consent.

Jenni Brown

The difficulty is always the level below child protection.

Clare Haughey

Child protection is quite clear.

Jenni Brown

Absolutely—in a way, it is clear in schools, and that is absolutely fine. In my experience, at the level below child protection, if we did not have consent, or if we had tried to gain consent and it had been refused, we would probably go to an adviser of some description—we have a child protection officer—in an anonymised fashion and ask for advice.

Without going into the detail of situations, it is hard to say where information was not shared—where nothing was done—and where it was. That would mean going into the minute detail of why one situation was okay and why one was not. In such circumstances, most named persons would go to an adviser in an anonymised fashion and ask, “What do you think?” It is normally social work services that we would want to share information with.

Clare Haughey

You have gone into the realm of us having named persons. I was not talking about that; I was talking about current practice. Have local authorities looked at ways of supporting social work and education staff by providing them with places to go and with information?

Jenni Brown

Although the named person is not statutory, we have been using that approach in our area. That is how we operationalise our business, if you like.

I am sorry; I have forgotten the question.

Clare Haughey

I asked what has been put in place or what local authorities intend to put in place. You say that you operate what might be called a shadow named person system.

Jenni Brown

Yes.

Clare Haughey

What support and guidance do you have in place for your staff?

Jenni Brown

We normally work in teams in schools, so we talk about information that we have within the team. There is normally an adviser who we can speak to at the regional level, and educational psychologists normally visit schools monthly. We would bring up in an anonymised fashion pupils who were causing concern.

Clare Haughey

Has that support for staff been working well in the shadow system?

Jenni Brown

Yes, so far.

Clare Haughey

What support have local authorities put in place, or what support are they looking at putting in place, particularly for child and family social workers?

Jackie Niccolls

There is obviously a line management structure, so if a worker is in any doubt about information sharing, they speak to their line manager. We get requests for information from solicitors, for instance, and in such cases we seek advice from our legal section and from the data protection advisers in the local authority.

On the question of people in education phoning us to ask what we think about a piece of information, we have relationships with the headteachers of schools in our area, so it is quite possible for us to get such calls. That is not a formal structure; it is much more informal—it is just people we have met at different venues seeking a bit of guidance—but there is also the formal structure of social care direct.

Clare Haughey

In normal circumstances, outwith immediate child protection concerns, would the first step for both of you be to seek permission to share the information? Is it the case that you would not share information immediately without seeking permission from the child, if they were of the appropriate age, or the parent or caregiver?

Jackie Niccolls

There is a myriad of different kinds of information. For example, Jenni Brown might phone to say that, for the umpteenth time, a child has come in to school grubby and smelly. That is not necessarily a child protection matter. It might be that a family needs some extra support. We might not know those involved—it might not be a family that we are familiar with.

We might contact the health visitor and ask about their experience of being in the family home and whether what has been reported is unusual. The question is whether social work needs to be involved or whether the health visitor could offer the family support instead. I would not say that the first thing that we would do would be to phone the mother to say that the school had expressed concerns and that we were going to phone the health visitor, if that is what you were asking.

Clare Haughey

So is it the case that you already share that information?

Jackie Niccolls

Yes. I would probably seek information back. At that stage, it would be a case of investigating and assessing, but that would involve sharing the information that the school had contacted us with a concern.

Dr Clapton

I mentioned a concern about the conflation of child protection with child wellbeing. A connected concern is whether the promulgation and formalisation of wellbeing indicators will trigger unneeded and unwanted attention. That is a huge question. The corollary of that is whether it will increase mistrust. We already have systems in which information is shared informally. If we legislate and formalise the material in question, there is concern that that would lead to overly formal processes that were based on what I have suggested is a disparate set of wellbeing indicators.

Clare Haughey

Are we not already using those wellbeing indicators quite widely in education, health and social work as a common language to speak about children and their development?

Dr Clapton

No.

The Convener

There seems to be a difference of opinion among the panel.

Dr Clapton

It depends on what you mean by “wellbeing”.

Clare Haughey

I am talking about the GIRFEC principles. We are already using those right across a child’s development.

Andrew Keir

If I remember the original question, it was about support for children. We do something in provision for the early years that I will use as an example. The existence of the health and social care partnership helps us to do it, and we are looking to extend it. We have placed social workers in the health visiting teams. The social worker is managed by the health visitor manager. To all extents and purposes, that social worker is part of the team. They are not responsible for child protection or looked-after children; they are there purely to support and assist families.

The health visitor will always identify with a family what issues there might be—they might be to do with relationships or a whole myriad of things—and ask whether a social worker who does not have child protection responsibilities can come to support the family. Nine times out of 10, the answer has been “Yes”.

GIRFEC is about getting the right help at the right time to the right person. As I said at the beginning, we should not forget that it is about getting it right for every child and how we best look after children. It is not about a teacher becoming a social work assessor. It is about using the skills of the different people involved. To do that, we have to share information. Social work has great skills in assessment and building therapeutic relationships. With the consent of families, we involve social work very early through our new model for the early years. We want to extend that to the five-to-18 age range within schools so that we can provide support at the very point that it is needed. It then becomes preventative early intervention, without having the stigma of a social work intervention. It is about using the right skills of the right people, but it is necessary to share information to do that.

Johann Lamont

Reflecting on what has been said, if I were to play the devil’s advocate, I would say that some of our young people were failed as a result of professional misjudgment and professionals not speaking to one another. That has been the driver for the legislation.

Some of the evidence that we have received, including Dr Clapton’s submission, suggests that if we formalise the approach, practitioners will lose their intuitive instinct for understanding that there is a problem and that defensive practice will emerge. To what extent is that a problem? If that happened, we would be going in the opposite direction from the very thing that drove the named person legislation and GIRFEC, which was to ensure that signs are spotted early. Am I overstating the danger of defensive practice emerging, which would be worse than the practice that we have currently?

11:00

Jackie Niccolls

No. I agree with you entirely. That was one of my fears. It is not that the practice that we have would look much different from what is proposed, but when there is any refocus on information sharing and the potential for workers to be prosecuted for it, there is inevitably a pulling back, whereby people do not share enough.

In my experience, when the named person scheme was trialled in Glasgow, there was definitely a lack of information coming through from different sources. When it was abandoned, we reverted to the information-sharing practice that we had already. There are quite a lot of mechanisms for information sharing between health, police and so on if we have a referral that is of concern. I know that people talk about the level below child protection, but often it is the information that is shared that makes us decide whether there is a child protection issue. There is the initial referral discussion process, which is a tripartite discussion between police, health and social work that takes place almost within 24 hours of the referral. On the basis of the information that we get, we can move to child protection mechanisms or decide that a single agency response is required, whether from health, social work or the police.

Johann Lamont

A point was made earlier about using the information and the skills that people have. The bit that we do not use well enough is education, which might be where the biggest problem will be in terms of knowing what to share. I was a school teacher for a long period of time. Teachers who see a child every day can see the deterioration, with increased absences and so on. Schools have always been a critical place to spot the early signs, but how well integrated into the information-sharing process is education? Do you think that schools might draw back from sharing information if the process is too formal?

Jenni Brown

I think that schools are just a wee bit wary about that. This time last year, or perhaps slightly before then, they were freely sharing information on the basis of trying to get early help for a child. However, I think that they are very wary of that now. It is about building that back up, so that the benefits of sharing information are realised again.

Johann Lamont

How do you manage situations in which the parents or carer and the young person have competing interests? I know of a historical case involving someone who confided in his social worker about low-level problems that he was having in his family. That information immediately went back to the family, which compounded the abuse. Regardless of the bill, are you confident that we understand the difference between the interests of the child and the broader interests of the family? Will the bill help with that?

Andrew Keir

It comes down to individual practitioners’ judgment. We had a situation in which a young person wanted counselling because of something that had happened, but they did not want the school to know, or the named person. The child was 14, so that was perfectly within their rights. We need to go back to the Gillick principle and consider young people’s decision making and their rights, which we have to respect. We have to approach things on a case-by-case basis. There is not one formula that would apply to every situation; it would always depend on the individual situation.

The Convener

Okay—thank you. Tavish Scott wants to come in.

Tavish Scott (Shetland Islands) (LD)

I want to ask Jenni Brown about the concern that she expressed to Johann Lamont that schools are wary of sharing information. I presume that they are wary of sharing information with other agencies in the local authority rather than within school.

Jenni Brown

Yes. In some respects, I think that that is because the bigger role that we have as a named person is a new one. When we were told that we could freely share information, we did that. Now that that is in question again, people are understandably a bit reluctant. They want to check with someone that they are doing the right thing before they share information—although, almost without exception, in the cases that I have been involved in the teacher has wished to do the right thing. It is about helping; it is definitely about putting the child, rather than parents or others, at the centre.

Tavish Scott

If I am overstating this argument just tell me, but if we enshrine all this in law, will the situation become more challenging? The point was made earlier that lawyers might start to become involved because of the need to check, legally, the position that teachers might find themselves in. In other words, will there be an improvement or does what we have at the moment work effectively?

Jenni Brown

I am not sure.

Tavish Scott

I do not blame you for that. I am not sure that any of us is sure.

The Convener

On the point about the unwillingness of staff to share information because they think that they might be prosecuted, I suppose that what you are looking for is reassurance that that will not happen. At that point, the staff will hopefully go back to doing what you talked about earlier. Correct me if I am wrong: the code of practice has to help, but would there not need to be guidance and training in place to make sure that, within the parameters, the staff are confident about what they are doing?

Once the scheme is in place, if it happens, will it not just bed in? That is a serious question—I do not know the answer. Major changes happen, but a year or so down the line they become part of what people do. You have been through change before and thought that it was horrific.

Jackie Niccolls

Yes, that will be the reality. It is just the initial refocus on information sharing that is making everybody take a step back and become a little more reticent about it. Eventually, it will embed into the system and people will revert to doing what is safest for children, which is sharing information.

As Johann Lamont was saying, long and weary is the notion that every agency has a piece of the jigsaw and that we get the full picture when we put that information together. I know that there are concerns about families and the invasion of private life. There might be concerns in one agency, but the other pieces of the jigsaw might ameliorate those concerns, with the result that the agencies do not need to be involved in families’ lives. It is not all about us finding a route to be involved.

The Convener

Yes. There is no invisible army of social workers desperate to go into everybody’s houses to do stuff.

Thank you very much for your attendance. That was a very useful session.

Fourth meeting transcript

The Convener

The second item of business is two panels of witnesses on the Children and Young People (Information Sharing) (Scotland) Bill. This is the fourth meeting at which we will consider the bill. We have already heard from the Scottish Government’s bill team, as well as from members of the legal profession, health service professionals and local authority education and social work representatives. This week, we have a focus on schools and early years in the first panel, followed by witnesses from the Information Commissioner’s Office.

Before we take evidence, I put it on record that, as agreed by the committee, the deputy convener and I met the Deputy First Minister and Cabinet Secretary for Education and Skills yesterday to discuss the themes in the evidence, and concerns that members have raised during evidence-taking sessions so far about the bill and the draft code of practice. That was to ensure that the Government is sighted on the committee’s concerns, including the lack of a code of practice to inform scrutiny of the bill and the current status of parliamentary scrutiny of the code that will be prepared under the bill. We hope that that will enable the Government actively to consider the committee’s concerns at this relatively early stage in scrutiny of the bill.

I welcome to the meeting Gillian Fergusson, depute rector for pastoral care at Hutchesons grammar school, who is representing the Scottish Council of Independent Schools; Lisa Finnie, the president of the Scottish Guidance Association; Maria Pridden, a classroom assistant and member of Unison; Lorraine McBride, a headteacher and member of the Educational Institute of Scotland; and Christine Cavanagh, network chair for the Lanarkshire area in the National Day Nurseries Association.

If any of the witnesses would like to respond to a question, they should indicate to me and I will call them to speak. I remind members that supplementary questions should lead on from the question being pursued and are not an opportunity to ask a second question.

Gillian Martin (Aberdeenshire East) (SNP)

I thank the witnesses for coming along to give us information. What is your current practice with regard to sharing information about children in cases that fall beneath the threshold for child protection but go into the realms of wellbeing?

Gillian Fergusson (Scottish Council of Independent Schools)

In the independent sector, we are committed to the getting it right for every child approach and we have interim guidelines. Many of our colleagues across the sector have a commitment to GIRFEC, but our current practice is a policy-based model that adheres to consent-based principles. There is a lot of anxiety about sharing information when a case does not meet the child protection threshold, so we would seek consent and share information with consent. I have spoken to a number of colleagues, who confirmed that the practice is not to share information without consent.

Lisa Finnie (Scottish Guidance Association)

I agree with a lot of that. As far as possible, we would not share information without consent. Obviously, when a case involves child protection, it is completely different. However, a lot of information goes between people daily and there is anxiety about always being able to record that consent has been sought.

We are also worried about instances in which there is a difficult circumstance—we would like more clarification on that. It is all very well when everyone is singing from the same hymn sheet and the parents and pupil are looking for support. The process is clear if we are making a referral—we have to record a signature, for instance. That is all good, but we are looking for help with more complex cases, in which there is perhaps a reluctance to involve social work.

Lorraine McBride

I totally agree with that. There is an issue when parents do not want us to share information about their child with police or social work, for instance. They are happy for us to share it with health professionals but not with other agencies. I suppose that child protection procedures would kick in and overrule that, but we need more clarity and guidance on the issue.

Lisa Finnie

In the past, there have been times when we have not been allowed to take things forward because the parents have said no. However, something always changes—we find a way around the refusal, things deteriorate and the case becomes a child protection matter, or the parents get desperate. Sometimes a difficulty that arises at one moment does not remain a difficulty—there is a pathway there. That may be where we need to work together.

Gillian Martin

You are saying that if there is an inability to do something at an early stage, perhaps because you cannot get consent, the case sometimes escalates into a child protection issue.

Lisa Finnie

If it is an early intervention, there can also be the problem that we might be told that the case does not meet a threshold, so we cannot get help anyway. At least we would have known, though.

Gillian Martin

This is an opportunity for you to tell us what guidance you are looking for when the code of practice comes out in its final form. What do you as practitioners want? Obviously there would be something about consent.

Lisa Finnie

Most people I have spoken to are very much in agreement about what we are looking for. We all understand that quite a heavy document is needed to begin with to get everything covered, and we are all happy with that. However, so much happens on a daily basis—for example, you might have a frantic meeting. Flow diagrams have been mentioned previously, and I think that all my colleagues would like to have that kind of ready reckoner to be sure that they are on the right lines.

We are also looking for a bit more scenario-based training, which is the kind of training that we are used to. I talked about difficult situations. We need to learn how to find a way around the more unusual incidents, rather than the type of incidents that we all deal with every day.

Ross Greer (West Scotland) (Green)

It was suggested by previous panels, from other sectors, that defensive practice might become an issue. Have the debate and the uncertainty over the past year changed practice already? Are people doing things differently?

Gillian Fergusson

When the Children and Young People (Scotland) Act 2014 was passed, we saw an increase in communication. Because we are unique in the independent sector, we perhaps do not have the same level of communication as local authority schools have. I saw an increase in communication in my own practice and I heard the same from colleagues.

Since the Supreme Court judgment, that communication has decreased. In addition, we were really positive about the better lines of communication that we had with external agencies—with service providers—but that communication has definitely decreased since the judgment.

The Convener

Does anybody have any other views?

Lisa Finnie

I am sorry—I will try not to speak all the time, but it is difficult. I would say that it was more a case of relaxing into being allowed to share information. My colleagues have not reported a change in their behaviour—I think that what is different is how they feel about it.

The only thing that has changed is that people share hypothetical situations more often. Instead of being confident that they have definitely done the right thing, they might ask, “If this happened to a child, what would you do? Who would be the right person to go to?” People might run something by social work that they would not have run by it in the past, when they would have been confident that they had made the right decision. We might be a bit more tentative and anxious about sharing now, as opposed to not sharing at the appropriate times. I think that we have been sharing what should be shared and not sharing what should not be shared.

Ross Greer

How much of a change to current practice would the duty to consider whether to share information represent?

Lorraine McBride

The difference is that if you had a concern, the duty would give you the backing to share that concern even if the parents were not happy about it. We should all be working together on the GIRFEC agenda—the whole point of it is that everybody is doing their best for every single child. When barriers are put in front of us, it is quite difficult to meet the needs of each child. The duty would enable named persons to say that they were going to share something because, as a named person—a person who has responsibility to ensure that a child is okay—they thought that that was in the best interests of the child. To do so might be against the parents’ wishes, but the named person might have a real concern. It would be unusual for parents not to want to work with us in the best interests of their child. However, the duty would give us the backing—I do not want to say clout—to do the right thing for that child, in confidence.

Gillian Fergusson

A lot of colleagues are already thinking about the duty to consider and what they are doing with information, so it would not change what we already do. The next question that we ask is whether we can share without consent. That is where the problem is. As Lorraine McBride said, it is unusual to have a parent or guardian who is at odds with our working towards the best outcome for their child. However, such cases do happen, and they are where we would perhaps benefit from more guidance on whether to share information without consent.

Liz Smith (Mid Scotland and Fife) (Con)

What happens, on a practical level, when you have to make a decision on whether to share information? Are you seeking guidance about both the law and the code of practice that you would expect to give you back-up? In your daily lives in schools, where you work with very young people, does having to do more paperwork place a greater burden on you?

Lorraine McBride

Absolutely. To be honest, everything to do with GIRFEC causes a burden on the person who has to do the paperwork—that is the de facto named person, at the moment. The administrative side of that represents a huge burden, and the confidentiality side of the paperwork has kept increasing.

Liz Smith

Has that been to the extent of preventing you from dealing with other things? Can you give us an example?

Lorraine McBride

For example, if a health visitor phones and needs information there and then, we have to access the information, pull it together and get it into a document that has to be sent securely. All the time, we are thinking that we are supposed to be in the classroom, doing a monitoring visit or speaking to a wee one who we wanted to catch up with.

For me, as a headteacher, and for EIS members who are headteachers and depute headteachers, our day can very quickly be filled up with that one piece of paperwork that needs to be pulled together. It is important and it needs to be done, but does it need to be done by the headteacher? I do not know. There is a fine line there, because of confidentiality. Do we say to someone in the admin team, who is already overworked and underpaid, “I need you to drop everything to do something else. I know that you’re doing absences and trying to phone people to find out where their children are, but this is needed by 12 o’clock”? It is an additional burden on our time. What happens all the time is that we extend our day beyond the contractual hours so that we can get all those other things done. I am sure that it is the same for everyone here.

Lisa Finnie

It is exactly the same for us. I feel that we do three jobs. We do the job during the day, which involves phone calls, emails, the teaching itself, children appearing at the door, and dealing with the incident that has blown up after the weekend and needs immediate attention. At the end of the day, the children go away and we start the next job, which is trying to put things into the SEEMiS wellbeing software program—as we watch the circle on the screen go round and round—and also finding bits of paper, putting things away and all the stuff that we have to do when we are at our desks. Then we go home and do the third job, which is all the things that we can do from home. Those might be 3 am jobs, which is why we get teased for sending emails at silly times. Realistically, there are three jobs. The only analogy that I can give is that it is like asking a checkout girl to go and fill the shelves when she has a queue. It cannot be done, and it is impossible to expect people to do it.

The Convener

But you do it now.

Lisa Finnie

I would not say that I am doing everything that I am meant to do, and I find that very difficult to come to terms with.

10:15

Clare Haughey (Rutherglen) (SNP)

I thank the panel for coming. I have a brief follow-up to the question before last. We all accept that child protection concerns trump everything and that such issues are raised regardless of consent. However, we need to be clear that we are discussing issues that fall below that threshold. What do you currently do when such issues arise? How frequently do they come up?

Maria Pridden

I am a classroom assistant. We often work one to one with vulnerable children or with children who are class refusers; we take them out of class and spend a lot of time with them. At present, information sharing is purely verbal—there is no diary system or set process. We therefore need guidelines on how we share information on what has happened to a child on a particular day, and how it will affect their play time, lunch time and going-home time and any transitions that they might experience throughout the day. The system is purely verbal, so we would welcome guidelines.

Clare Haughey

Is it only in your educational establishment that the system is purely verbal? I imagine that there must be some written records.

Maria Pridden

If a child comes in to school and discloses that they have had a bad morning, that is relayed verbally. As classroom assistants, we do not have access to SEEMiS or to pastoral notes. We would tell the teacher what the child has said or we would tell other classroom assistants what has happened to the child. Sometimes, we do not get a chance to do that, because there is no time. We just do our best and try to pass on information.

Christine Cavanagh (National Day Nurseries Association)

In the independent nursery sector, our nursery heads are not named persons. That is the health worker—

Clare Haughey

I am not referring necessarily to named persons. I am talking about how you currently deal with the information. I am extending the point that Gillian Martin made. What do you currently do if the issue in question does not relate to child protection?

Christine Cavanagh

I understand. I was going to say that, very often, the nursery head has to act as a co-ordinator for issues that are not to do with child protection. They may well be dealing with a number of professionals who are all very overburdened.

As has been said, when we are dealing with one child and trying to help them to get the best outcome, that very often overwhelms everything else that the management team should be doing. We are simply juggling everything and trying to keep all the balls in the air to make sure that we get the best outcomes for the very vulnerable children. That sometimes means that the children who have less critical issues get missed because there is just not enough time in the day to do everything.

Clare Haughey

I am sorry, but we are straying from the question that I asked, which was about what you currently do.

Christine Cavanagh

We currently have a record. In the private sector, we keep chronologies for children that detail the issues that they have. It would be down to the individual nursery manager to seek support for individual children.

Oliver Mundell (Dumfriesshire) (Con)

My question is on the workforce pressures that you are talking about. Will the need to record decisions that are made as part of the duty to consider sharing information create more workload for headteachers in particular? If they are doing that for hundreds of pupils, will it lead to an increase in workload?

Lorraine McBride

Absolutely. It will do so not only for headteachers but for principal teachers for pupil support in the secondary sector, if it goes down that road. There will be huge issues there—probably even greater than the issues for headteachers—because those teachers have a teaching commitment as well as having to do everything else.

We have to be very careful about what we do and record so that the paperwork does not overwhelm the issues that we are dealing with. That is a big concern. Various authorities around the country put things in place in different ways. Some authorities have gone gung-ho and put everything in place, so there is paperwork galore; others have held back, waiting on decisions. The situation with regard to the recruitment of headteachers is dire. People do not want to do the job, which is a shame, because it is a fabulous job and working with children and young people in that capacity is a great thing to do. However, as the workload increases—the issue that we are discussing is only one small part of the increase in workload—I worry about the next step for the recruitment and retention of headteachers.

The Convener

You are saying that the workload of headteachers is heavy, which is different from what we are discussing, although I accept that what we are talking about will add to that workload. If the guidance on how the reporting mechanism works is pretty straightforward, will that not just become part of what you do anyway?

Lorraine McBride

It will become part of what we do. However, the worry is that the administrative support will not be there. It is the paperworky bit that will increase the workload. Talking to children and bringing people together for meetings are part of our job now; that is what we do. It is the additional recording and minute taking that those of us in the role of headteacher or deputy head will need someone to help with.

The Convener

Are you talking about resources?

Lorraine McBride

It is the resourcing of it.

The Convener

Right. I just wanted to clarify which aspect we are talking about.

Lorraine McBride

That is the part that increases the workload.

The Convener

It is the paperworky bit.

Lorraine McBride

Yes—the paperworky bit.

Oliver Mundell

In the event that you are not given considerable additional resources, do you have enough time to properly implement the system?

Lorraine McBride

That remains to be seen. We would all try our best to implement it properly with additional resources.

Oliver Mundell

That is the other half to my question. Is it possible that the pressure and burden on your time will lead to mistakes being made, however unintended, for some of the children who we have talked about whose welfare issues are harder to spot? The fact that there will be more pressure and less time to spend with the kids perhaps opens up the possibility of mistakes.

Lorraine McBride

If headteachers are not well resourced and supported in the process, things could be missed. Lower-level things, especially, can get missed, and they are sometimes the most important things. For example, something might not be a crisis but could escalate into one if it is not caught early enough. Resourcing and support for the process are important.

The Convener

You have described the need for the named person with regard to the low-level stuff that we are trying to stop before it becomes a crisis.

Johann Lamont (Glasgow) (Lab)

I am interested in which of our panel members are named persons and, if you are a named person, how many young people you are a named person for.

Lisa Finnie

I was a named person and then last year I became an establishment contact when it was decided that there was not a named person. However, I am a named person, as that is the role that guidance teachers undertake.

Johann Lamont

How many young people are you responsible for?

Lisa Finnie

More than 200.

Johann Lamont

Lorraine, as a headteacher in a primary school, how many young people are you responsible for?

Lorraine McBride

I am a de facto named person for 240 children.

Johann Lamont

Is it the same as the old model of guidance teachers in secondary schools, but with added admin? Is that the only difference?

Lisa Finnie

It has changed dramatically but, as you acknowledged, that has been mostly about additional work. It is not really possible to do the traditional guidance role as well as we used to, and there is the additional pressure of revamping personal and social education, which we are supposed to do and which we see as very important, too. How can we do everything at once and do it effectively?

Johann Lamont

In the old model that I knew, a guidance teacher was a go-to person for young people to talk to and say, “Can you speak to my teacher, because they need to understand that there is a problem?” Is that bit of your role diminishing?

Lisa Finnie

It is less possible to do it the way that I want to do it.

Johann Lamont

If there was no formal named person role, you would not have the admin but what would we lose? I get the point that you might not want to do the paperwork—it is an extra burden that gets in the road—but what would be missing if we did not have a named person? Would your job change in terms of dealing with children who are in need or would children be more at risk?

Lisa Finnie

I am not sure whether I am answering this correctly, but there is a need for the named person to deliver a fair and consistent approach. One of the first things that I read in the guidance when it came out was that the policy is what we are already doing but it is about trying to ensure that everybody has access to the service. At the moment, the approach is not consistent but, if things were done in the way that we want them to be done, that is what we could deliver. There is a risk that a child is missed and that a serious problem occurs because we do not have the process, legislation or procedures to ensure that the policy is implemented correctly and that we know how to do it.

Johann Lamont

The key thing is resources, though.

Lisa Finnie

Yes, and consistency.

Johann Lamont

Maria Pridden said that it is a fundamentally important job to get intelligence, understand what is happening to a child and feed it back into the system. Does the fact that there is a named person make any difference to that important job?

Maria Pridden

It would definitely help to support the child.

Johann Lamont

Do you mean if what you said was taken as mattering and there was a guarantee that it would be put somewhere?

Maria Pridden

Yes.

Christine Cavanagh

To address the question about what the implications would be if there were no named person, in the early years, the named person is critical because early years education is not statutory so there is no statutory person there for the child. Although it is difficult for independent nurseries because we might have to deal with 15, 20 or more health visitors, it is still important for the child that there is a consistent contact that everybody can approach. It is very important that there is a named person.

Johann Lamont

That consistent contact is about the professionals, not the child.

Christine Cavanagh

Yes, but it is somebody who has the child’s best interests at heart and whose purpose is to ensure that the professionals who should be looking after that child do it properly, and to bring all the strings of the care together.

Johann Lamont

Will we end up with a consistent contact for the professionals but a reduced ability of guidance teachers to do the day-to-day contact with children?

Lisa Finnie

Yes. That is where we need the resourcing to be able to pass issues on appropriately and get the support that is required. To go into ideal practice again, how I envisage it is that, if I notice that something has gone wrong with one of my children because that has been brought to me by a teacher, or because I have noticed it, the child has raised it or a police report has come in, I will have somewhere to go with that—I will have support from child and adolescent mental health services, social work or the third sector.

Tavish Scott (Shetland Islands) (LD)

I will test the fair points that the witnesses are making about resources and workload against the fact that the Parliament is being asked to consider a change in the law to create a duty to consider information sharing. Some of the earlier evidence that we took was about what that will mean in practice. I take on board all that the witnesses say on resources and workload—I have plenty headteachers at home telling me all about that every day—but do you have concerns about the bit before the resources and administration, which is the new duty that will be laid on you if the Parliament passes the bill? Do you have concerns about how you will make the assessment that the duty will require and whether it will add in principle to the decisions that you have to take and, therefore, to your workload long before we get into who does the administration?

10:30

Lorraine McBride

The worry is that, as individuals with the duty to share information, we will be legally liable in some way. There is a duty on the authority—the named person service as a whole—to ensure that information is shared but, because of the legalese about it being a duty, there is a real concern for headteachers in case we get it wrong. We think, “What is going to happen to me?” Before we get to the workload or anything else, there is that worry for all of us in the profession. We worry about the kids and about doing our best for them all the time. We are then worrying about legal liability as well. I appreciate that it is the duty of the named person service, but that needs to be made very clear.

Tavish Scott

What is the way round that?

Lorraine McBride

For it to be not the individual headteacher but the named person service that has the duty. The service would then have responsibility to ensure that headteachers share information. However, that is a real worry.

Tavish Scott

So would you rather that an individual pupil did not have a named person and that it was the service as a whole that was used in terms of that legal assessment?

Lorraine McBride

No. I think basically the named person is part of the named person service and the named person has duties or responsibilities towards that individual child. However, in relation to being held legally accountable for the decision taking, there has to be some protection for headteachers.

Tavish Scott

Absolutely, but that is not how the issue is currently considered. As a headteacher, you would ultimately be that person, particularly given that the governance proposals make you even more responsible for lots of other things.

Lorraine McBride

Yes.

Maria Pridden

That raises the question about the training that will happen beforehand and how efficient it will be. Will there be on-going training? Will it just be computer program training or will there be a counselling part to show people how to counsel the children? We all have child protection training once a year, but this is slightly different. We need on-going training in place so that we all know what we are doing.

Gillian Fergusson

I echo Lorraine McBride’s point about the anxiety of headteachers. She has the backing of a local authority. We are slightly further down the road that you are proposing in that independent schools are autonomous, so that anxiety is even greater. We might envisage more legal recourse more regularly—which has implications for all schools—because of that shared liability, which is a worry. It is a named person service, but I am currently the de facto named person, and I am concerned about my shared liability with that service and eventually, at the end of the road, the governing body, which is really the directing authority.

It comes back to the code of practice being clear enough and in a language that does not tend towards the legal. We need language that teachers and practitioners can actually understand. That would be the key to the success of the code. It has the potential to be really powerful for improving outcomes at the primary prevention and early intervention stage, but we need it to be really secure and accessible.

Tavish Scott

So you share the concerns that we have heard that the draft code is written by a lawyer. I am not a lawyer and I cannot follow it so how can practitioners follow it? It needs to be written in language that we can all deal with.

Gillian Fergusson

Yes.

Gillian Martin

You are talking about feeling that you might be personally liable. You have to follow quite a lot of legislation and rules already. At the moment, if there was an issue and there was legal action by a person, you would not be personally liable for that, would you? The local authority would be liable. How would the situation be different in relation to the named person?

Lorraine McBride

We are just saying that there needs to be clear guidance on that.

Gillian Martin

It is the case that you would not personally have to stand in front of a court defending something, is it not?

Lorraine McBride

Yes, that is the case. We work for a local authority.

Gillian Martin

There will be no difference when the named person legislation comes in.

Lorraine McBride

We do not know whether there will be any difference.

Gillian Martin

So you need clarity on that.

Lorraine McBride

Yes—we need that clarity.

Gillian Martin

But it is the case that there will be no difference.

The Convener

Let us not have a round-table discussion about this. We were told yesterday by the Government’s bill team that individuals will not be held legally liable. What the Government needs to do is exactly what you have said, which is to make it perfectly clear to every practitioner that their legal status will not change from what it is now in respect of their doing their job. The last thing in the world that we need is people like you, who are keen to participate, being worried about sharing information because you might be held legally responsible. The Government has made it clear to the committee that the local authority, or whatever body, would be held responsible.

I see that Oliver wants to come in now, and disagree with me.

Oliver Mundell

I do not, convener.

To follow on from that, do you have concerns—to go a stage down from legal responsibility—about professional standards and about how concerns that might be raised by service users would be dealt with inside your organisation? Does that create additional pressure?

Lisa Finnie

There is anxiety about that. We are not necessarily all waiting for a legal writ, but people are concerned that they will be blamed for something that happens. The system is new and very high profile, so if something goes wrong, it would not just be something like the teacher not having marked some homework: it will be critical and it will be very worrying. People are concerned.

The Convener

I think that the Government will get the message that it has to make it very clear who will be responsible.

Daniel Johnson (Edinburgh Southern) (Lab)

Before I ask my question, it is worth putting on record that the Law Society of Scotland and the Faculty of Advocates said in evidence that the code is not clear about personal liability.

I have some questions about the need for clarity—there have been a lot of comments about that—on when you would share information. Following on from Tavish Scott’s point, how did you react when you read the draft code of practice? Is it adequate for what you need?

Gillian Fergusson

No. When I saw the draft code of practice, I could see how it would apply to the child protection threshold but not how it would apply to the wellbeing threshold in terms of sharing information without consent. People would share without informing or without seeking consent, which is really problematic. Apart from very exceptional cases, I cannot imagine where the draft code of practice would sit in relation to the wellbeing threshold.

It would help if we had an idea of what the trigger might be. I understand that that is really difficult to define; it comes down to the definition of “wellbeing” and how we measure it. The tools are there, which is helpful, but there is some confusion across the board in practice around “wellbeing”. We are looking at the draft code and thinking that we cannot imagine a case in which we would share information without consent around, for example, “included”, in a way that would not breach article 8 of the European convention on human rights or the Data Protection Act 1998.

The reference to “vital interests” in schedule 3 to the 1998 act is quite clear to me and other practitioners in terms of child protection, but not in relation to a lower threshold. That is what worries us.

Daniel Johnson

If there are no other comments about that, I will move on.

The SHANARRI—safe, healthy, achieving, nurtured, active, respected, responsible and included—indicators are broad, useful and very welcome, but they lack definition and can often be subjective. In a previous evidence session, we heard that taking a child up Everest could be an example of good parenting to one parent, but an example of something harmful to another. Can you think of examples of where you might share information in relation to the SHANARRI indicators that you currently cannot, would not, or might be hesitant to share? The answer appears to be no.

Finally, in evidence, the Law Society of Scotland and the Faculty of Advocates highlighted in a number of different ways the fact that the duty to consider is very finely balanced, from a legal perspective—it is one that, even as lawyers, they would find difficult. What concerns do you, as practitioners, have about getting the legal judgment right? Are you currently equipped to make that judgment?

Lorraine McBride

We worry ourselves sick every single day about every decision that we make. We think that we are confident in our abilities to make decisions about children and that we have the knowledge to enable us to do that. We know our children well. The SHANARRI indicators are a good indication of how children are doing. They are subjective, but most experienced practitioners can work out what children are experiencing and where it all fits in.

The question goes back to the legal thing and people being sure of themselves. We need to have clarity about whether we are doing the right thing in making decisions. I do not know whether training would help us to understand the duty to consider. It is a difficult situation, because it is hard enough making decisions about children without worrying about the duty to consider. A duty in law is a big thing. It would just make everything that bit bigger, in that we would second guess ourselves more.

Gillian Fergusson

The duty to consider is one element, but evidencing that duty is also problematic. We have a very good national practice model, with the resilience matrix, the wellbeing indicators and the “My world” triangle. That model works for us across the sector, and we use those tools, but it is quite a leap to move from that to evidencing the duty to consider. Perhaps more guidance on that would be helpful so that we have the security of knowing that we are doing it correctly, which is what we all want.

The Convener

Before I bring in Colin Beattie, I will clarify something. What is coming across is that you are already doing a lot of the things that you will be asked to do: you are already making decisions on wellbeing every day, are you not?

Witnesses indicated agreement.

The Convener

We can debate your concern about protection, but if there is clear notification that you will not be held responsible, that will take a big burden off your shoulders. It will also help if the code of practice is written in the way that you have suggested, with flow charts and so on. I say to Tavish Scott that I accept that it is not quite like that now, but that is what the witnesses have asked for.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

Gillian Fergusson said that there is no common understanding of the term “wellbeing”. I do not know whether the rest of the panel agrees—I would be interested to hear whether they do. Does the term need a statutory definition? Is that possible?

Lisa Finnie

I thought that I knew what “wellbeing” means until I heard that other people do not know what it means. Now, I think that I do not know what it means. Up to now, I was pretty sure that there was the welfare element, which was more about child protection, the significant harm element, and wellbeing, which was about looking at SHANARRI when something was wrong—maybe the child was not behaving in a safe way, was not doing particularly well or something else was going on. I thought that it was quite straightforward, but maybe it is not. I am worried now. I was fine last week. [Laughter.]

Gillian Fergusson

I said that there is no standard definition or understanding of “wellbeing”. In our practice, we are quite secure internally about what it means, but we come across difficulties in interacting with service providers that have a different understanding of it.

It would be difficult to produce, but it might help if there was a broader definition that we could follow. We have assessment tools, and we are comfortable with them, but what I apply in my school might not be the same as another school’s practice. We are aiming for parity of practice—I would love to have that. Anything that can help to deliver that would be very welcome.

Colin Beattie

Are you saying that each group of practitioners has a common definition, but it might not be the same as the next group’s?

Lorraine McBride

It is more about having a kind of threshold. If we are doing an assessment, at what point in relation to the child’s wellbeing indicators is there a commonality such that we would say that we have done all that we can internally within the school by putting in supports and so on, and we now need to involve someone else? There needs to be commonality across the country about that.

We take one approach in our authority, but the neighbouring authority might have a different understanding because of the training that people there have had, so they would have a commonality, although, perhaps they would not: it might be a wee bit different from school to school, or between secondary and primary schools. It would be quite useful—to go back to what Gillian Fergusson was saying—to have guidelines on that commonality of threshold.

10:45

Colin Beattie

Should the definition of “wellbeing” be statutory or included in the code of practice?

Christine Cavanagh

Before I answer that question, I would like to build on the point that Lorraine McBride made, which was that what might be secure at one establishment, or even in one local authority area, might not apply across the board. When they work outwith the education authorities, members of our organisation are very much working on their own. As I said, what is secure in one establishment might not transfer across, so it would be helpful to have “wellbeing” defined somewhere, in the code of practice or independent of it.

Colin Beattie

Is “wellbeing” definable?

Christine Cavanagh

Everybody has their own definition of “wellbeing”, I think. It is a matter of consistency, and clarity and consistency of practice are things that we are here to talk about. Yes, it is definable, but whether everybody would agree to one person’s definition is another matter.

Colin Beattie

The common theme that seems to be emerging is clarity and consistency. Does the bill achieve that? I realise that the code of practice is not out there yet.

The Convener

I think that you have answered your own question in reference to the code of practice.

Colin Beattie

Yes, I think so. I have done that for the second week running.

Liz Smith

On a point of information, the Supreme Court ruled that, other than the SHANARRI indices, the definition of “wellbeing” is not seen in law. Therefore, the panel is quite correct in highlighting the fact that there is no legal definition of it. That is the problem.

The Convener

Thank you for pointing that out.

Oliver Mundell

When the bill first came before us we talked about a duty to share. Are you more comfortable with the duty to share than with the duty to consider?

Lisa Finnie

It does not make much difference; I just want whichever one it is to be clear and for there to be training, with worked examples and scenarios. It does not make a difference to me, personally.

Oliver Mundell

Some witnesses have said that they do not like the idea of having a duty in law on where responsibility lies. Is there a difference in the type of duty, or is the issue about the duty—full stop?

Lorraine McBride

It is still about the duty part of it, regardless.

Oliver Mundell

That is helpful. Thank you.

Daniel Johnson

The named person provisions are in place—that is not what we are talking about today. You can share information when there is a question of child protection. This discussion is about information sharing in relation to wellbeing. Is what we are discussing today something that you want? Is it useful?

Gillian Fergusson

Do you mean do we think that it is useful to share information?

Daniel Johnson

Yes—information specifically on wellbeing.

Gillian Fergusson

Yes. It is a requirement. If we need to access service providers regarding support for a young person and we have consent to share the information, then we would absolutely want that provision in order for the young person to get the best outcome.

Do you mean sharing without consent?

Daniel Johnson

Yes.

Gillian Fergusson

That is part of the issue that we have. If I am looking at a case in which I think it would be helpful to share information because we might access a service, that might involve compulsion of the parent to engage with the named person service, which was never intended. We are left in a position where we have to say what we think would be best.

We have all had occasions when we have asked to share information and been told that we can share one piece of information but not another—we get partial consent. In the event of a parent—or the child, if they have capacity—saying to us that they do not want information to be shared, we would do two things: we would closely monitor the situation and we would see whether we had a better solution that is more creative and could achieve the same outcome.

However, it goes back to the named person service and the fact that parents are not compelled. There is a lot of confusion around whether parents can opt out of the named person service—which is a slightly different issue. The service is there should they wish to access it. We would want to share information to help the young person. If we cannot do that, that is a legal issue under the Data Protection Act 1998, which concerns why we would be sharing the information and how we would define vital interests. We are comfortable with that at a child protection level—but perhaps not below that level.

The Convener

Thank you very much for your evidence and your time this morning. That was very useful.

10:50 Meeting suspended.

10:54 On resuming—

The Convener

I welcome to the meeting Dr Ken Macdonald, head of ICO regions, and Maureen Falconer, regional manager for Scotland, both of whom are from the Information Commissioner’s Office.

We will move straight to questions. We understand that, under the new Data Protection Bill, your office will have a role in preparing the data sharing code of practice. Will you explain how the code of practice was developed for the Data Protection Act 1998 and what approach you plan to take to the development of the new code, including the likely audience, the use of plain language and practical examples?

Dr Ken Macdonald (Information Commissioner’s Office)

You are right. We have a statutory duty to produce codes of practice under the 1998 act. It was a statutory obligation to prepare the code of practice on information sharing, which was published in 2011. We have a standard approach when we develop codes of practice: we draft a code internally, seek views from stakeholders, review the draft code, amend it as appropriate and ensure that it is in plain English.

Anyone who has been working in data protection since the 1998 act came into force will have seen a sea change in the way in which our guidance is produced. The first guidance was very legalistic—in fact, it was not much different from the act itself—but, over the years, we have moved to a much more practitioner and citizen-friendly style. The guidance is in plain English and we give examples. We listen to our practitioners and try to make the examples relevant to them. There is input on the guidance and we consult on it.

The Convener

How do you consult? For the code under the Data Protection Bill, for example, who will you consult?

Dr Macdonald

It is slightly different according to the guidance that we are preparing. We consult interest groups. We produce our consultative document, make it available for six or eight weeks, take in the responses and amend our draft guidance as appropriate.

Maureen Falconer (Information Commissioner’s Office)

One of the good things that we do is set up a band of critical friends. We welcome constructive criticism, so we bring on board people who we know might have an issue with whatever guidance or documentation we are trying to put together. We basically let them loose on it and ask them to come back with any criticisms that they have and then we take those criticisms on board. When we are trying to put guidance together, it is really valuable to have critical friends to ensure that the guidance addresses the salient issues and is in plain English, as Ken Macdonald said. It exists for practitioners and the public to understand.

Liz Smith

Dr Macdonald, in your note to the Education and Culture Committee of 3 October 2013, under the section on legislative competence, you acknowledged that a number of witnesses questioned whether

“the competency of information sharing aspects of the”

Children and Young People (Scotland) Bill was in line with article 8 of the ECHR. You also acknowledged that you had considered Professor Norrie’s comments because you had some concerns about the matter. After that reconsideration, what advice did you give to the Scottish Government?

Dr Macdonald

I cannot recall. That is now four years ago. I know that, at one point, I wrote to the clerk of the Education and Culture Committee when the Children and Young People (Scotland) Bill was going through the Parliament. Our big concern was about the relevance of the information that would be shared. One of the data protection principles is about relevance. You can only share information that is relevant and not excessive, and we did not feel that the bill as introduced met that criterion under the Data Protection Act 1998.

An amendment was proposed and we wrote to the Education and Culture Committee in December 2013 to say that, although the change from “might be relevant” to “is likely to be relevant” addressed our concerns, it did so only in large part. We were not satisfied, and were never totally satisfied, that the bill had sufficiently specified the level of data sharing that could go on.

Liz Smith

Did you put to the Scottish Government the point that you were not satisfied?

Dr Macdonald

It saw that email as well. It was copied into it.

Liz Smith

Did you advise the Government that there was a legislative incompetence in the Children and Young People (Scotland) Bill?

Dr Macdonald

I sent the email to the committee and, as it addressed an amendment that had been proposed, I also sent it on to one of the Scottish Government officials.

Liz Smith

When the Supreme Court judgment was made, the people who had been witnesses at the time were proved correct—the data-sharing aspect was ruled to be unlawful. You expressed your disappointment with that judgment. Why were you disappointed?

11:00

Dr Macdonald

There seems to be a perception that we were disappointed because of a view that we had on the Scottish Government policy. That is quite incorrect. We were disappointed because the Supreme Court had made a judgment on data protection, on which we clearly had not advised, in total or otherwise, as perhaps we should have done.

It has been recognised that the bill and the act were certified in this Parliament as being human rights compliant, and the inner and outer houses of the Court of Session were also satisfied of that. As I said, it was reputational damage that we suffered—it was nothing to do with the policy, as has been suggested by other people.

Liz Smith

Thank you for clarifying that. Therefore, the disappointment concerned a misunderstanding about the advice that you had given to the Scottish Government. Is it correct that you were disappointed that the Government did not accept the advice that you gave?

Dr Macdonald

The disappointment was that we had not fully appreciated the points that the Supreme Court raised.

Liz Smith

To what lengths have you gone, this time, to ensure that the advice that you have given to the Scottish Government for the new bill is both accurate and legislatively competent?

Dr Macdonald

We have worked with the Scottish Government—Maureen Falconer has been involved quite closely in that—and we have used our legal colleagues in Wilmslow. As you will have seen in our evidence, we think that the current bill is compliant with the data protection side. However, we have reservations about the code of practice, as, it seems, does every other witness.

Liz Smith

Have you given any advice to the Scottish Government on that code of practice?

Maureen Falconer

Yes.

Liz Smith

Can I ask what that was?

Maureen Falconer

The advice was that, as it stands—given the timeframe and the fact that the general data protection regulation will be commenced in 2018—the illustrative draft code of practice is not fit for purpose. It must take cognisance of the GDPR; in particular, it must take account of the fact that it will be used by public authorities and that the GDPR includes certain restrictions for those authorities.

Liz Smith

Thank you. There was obviously some confusion about the letter of advice that was on various local government websites and so on, which I understand was written in 2013. In 2016, you quite rightly amended that advice in light of the Supreme Court judgment. Were you surprised that the old letter of advice was still being used for the implementation of this policy?

Dr Macdonald

We put that letter out and we put a clarifying letter out after the judgment was issued. It is for the local authorities to train their practitioners in how the Data Protection Act 1998 applies to the work that we are doing. Some have chosen to retain that letter, because parts of that advice are still valid.

Liz Smith

Would you agree that that is part of the confusion?

Dr Macdonald

I do not know that it is, to be honest. We added to that advice with the Supreme Court’s decision. I think that the confusion relates to the code of practice that is before you now.

Liz Smith

Thank you.

Maureen Falconer

Can I just clarify something on the issue of disappointment? Part of our disappointment was to do with the fact that—not for the first time and it will not be for the last time—the courts disagreed with the ICO as the regulator. The court is the final arbiter; we can have a view, as the regulator, in interpreting the 1998 act, but the court can always disagree with that view. That was our main disappointment. It happened over the issue of the definition of personal data, which is pretty fundamental, and we then had to go back to the drawing board over that. Our disappointment was about the fact that the court, as the final arbiter, disagreed with our particular view.

Liz Smith

Thank you for that clarification. I was trying to get at whether it was a political disappointment or whether it was to do with the process. You have clarified that it was to do with the process.

Tavish Scott

I am so tempted to say something about the courts, but I will not.

Will the United Kingdom Data Protection Bill, which was introduced in September, change the landscape?

Dr Macdonald

In some ways. It is a fairly comprehensive bill, which is 200 pages long. Its purpose is to bring the general data protection regulation, which is a piece of European Union legislation, into British law where derogations have been made to member states because, as a regulation, it applies throughout the EU.

The GDPR and the bill will bring the existing regime into the 21st century. There has been huge technological change since the Data Protection Act was passed in 1998. We talk about that being an evolution rather than a revolution. Just think about how technology has changed in that time—it is probable that, in 1998, very few of us had internet access at home, but now we all have it in our pockets. We carry around with us information that would have taken up a room in days gone by. The bill reflects that, and other changes in technology.

Tavish Scott

I get that, but will the bill make any difference to the named person scheme?

Dr Macdonald

It will enhance people’s rights. It is important to say that, under the 1998 act, an individual has rights, to a degree, in relation to the processing of their information, and the bill and the GDPR will enhance those. However, they will also make fundamental changes. A much greater emphasis will be placed on awareness raising and on ensuring that the person who collects the information provides information to the individual about what will happen to it.

Many of the things that are in the GDPR are things that we have been promoting for several years. When we have talked to practitioners about child welfare, wellbeing or child protection issues, we have always said that they must engage with the child and tell them what will happen to their information. Even if they know that they will pass the information on and that they do not require consent to do so, they should still advise them, because that is crucial to maintaining the relationship between the client and the professional and keeping the child’s trust.

Tavish Scott

You are describing procedures and guidance, but I am absolutely focusing on whether the Data Protection Bill could change what this Parliament is being asked to consider. I am sorry, but I just want you to address that direct question.

Dr Macdonald

These things are linked. Previously, under the 1998 act, professionals did not have to give quite as much information as they will have to give in the future. I just wanted to highlight that we have been pushing on that for some time.

The other big issue is consent. We have said clearly that if professionals are going to share information on grounds other than that of consent, they should not suggest to the individual that they can give their consent, because that will confuse them. If the professional is going to share the information anyway, suggesting that the individual can give consent might well break down the relationship.

The GDPR talks much more about the balance of power that exists between individuals and the public authority. When it comes to young persons or vulnerable children, it is clear that the balance of power lies strongly in favour of the public authority. A child could be asked, “Do you mind if we share this information?”, but the very fact that it is a teacher or a doctor asking the question could be enough to make the child say yes. That is not real consent, because it is the adult’s dominance in the relationship, rather than the process, that might lead the child to say yes.

Under the GDPR, public authorities are much more limited in when they can ask for consent. That is what a lot of the balance comes down to.

Tavish Scott

But the Data Protection Bill will go through the House of Commons and then the House of Lords, so it could be amended at any stage.

Dr Macdonald

That condition of processing is with the GDPR—it is an EU law.

Tavish Scott

You have lost me. I thought that we were talking about a bill that is going through the House of Commons and the House of Lords. As primary legislation, it can be changed by amendment. Most of your answers have lost me so far.

Dr Macdonald

Sorry.

Tavish Scott

All that I am asking is whether that has implications for us, given that we are considering primary legislation in the Scottish Parliament.

Dr Macdonald

Okay.

Tavish Scott

Yes or no?

Dr Macdonald

It is not just a yes or no question.

Tavish Scott

Either it has implications or it does not.

Dr Macdonald

No—I will have to explain the relationship between the three pieces of legislation. At the top is the GDPR, which is a European piece of legislation—

Tavish Scott

We are about to leave the EU.

Dr Macdonald

The GDPR has taken effect because it has gone through the relevant process. It will be implemented next year when we will still be in Europe—anyway, the Government has already said that we will follow the GDPR. Because it is a regulation, it is automatically part of UK law. The repeal bill that is currently going through the UK Parliament will deal with the post-Brexit side. However, unusually for a regulation, there are several things that are derogated to the member state.

The Data Protection Bill that was introduced on 14 September deals with aspects that were derogated to the member state. Those relate to certain exemptions and issues around children in respect of the information society and matters of law enforcement, and to matters of national security. The two things go together. However, what has not been derogated under the GDPR will have to remain the same. The matter of consent and the balance between the public authority and the individual is a GDPR-level requirement, so it cannot, at this stage, be amended by the member state.

Tavish Scott

Does that mean that the UK bill will therefore make no difference to the matter that we are considering this morning?

Dr Macdonald

Not on the element of the conditions of processing. There are derogations and exemptions, but we would say that, as it currently stands, the bill would not make a difference, because the conditions of processing are pretty much the same as they are under the current act.

Tavish Scott

Do you accept my premise that, as a bill, it could be amended and therefore could have an impact?

Dr Macdonald

It could have, but not on the top conditions of processing, such as consent. This is another issue that comes into the discussion about the code of practice and reflects what the Supreme Court said about the number of pieces of legislation that the practitioner has to deal with. If you look at the 200-page Data Protection Bill, you will see that it constantly refers back to the GDPR articles and recitals, so it is not easy to read. If you think that the Data Protection Act 1998 is bad, the new bill is worse and it will make it even more complicated for the practitioner if there is not a nice clear code of practice.

Tavish Scott

I take your point about the code of practice.

The Convener

It would be helpful if you could provide the committee with some of the material that you have just discussed with Tavish Scott.

Ruth Maguire (Cunninghame South) (SNP)

Good morning. We have been taking evidence on current information sharing. Can you give us some clarity around the current legal requirements that enable sharing of information about a child or young person? I am specifically interested in information about their wellbeing, rather than the child protection stuff.

Maureen Falconer

Therein lies the conundrum. I was interested to hear the previous panel talk about child protection. No one has an issue with that and it is considered in relation to significant harm or, in data protection speak, “vital interests”.

You have to rely on a specific condition for processing to be able to process information—that is anything that you can do with a bit of information, from obtaining it through to destruction and everything in between. The Data Protection Act 1998 sets up a framework, but people forget the preamble, which is also in the GDPR, where it is clear that it is not just about the protection of information but also about the free movement of information. The Data Protection Act 1998 sets up a framework to allow for the safe and secure movement of personal information. It is not about ticking one box, rather you have to get all your ducks in a row: you look to the eight data protection principles and then abide by them. The first principle is that information must be processed fairly and lawfully.

Lawful processing requires meeting at least one of the conditions for processing under schedules 2 and 3 to the Data Protection Act, depending on whether the data is personal or sensitive personal. Currently, in order to be able to share information below the “vital interests” level, the practitioner would still have to rely on one of the other conditions for processing, either consent—which is the first condition in both schedules 2 and 3—or, if the practitioner is not relying on consent, the processing has to be “necessary”, as the Supreme Court highlighted, for specific purposes.

11:15

The important point about information sharing is purpose. Everything to do with data protection is in the context of purpose. That purpose will make the information sharing compliant or non-compliant.

If the purpose is that the practitioner has a wellbeing concern, three levels have to be considered—significant harm, which everyone is familiar with; a wellbeing concern at a very low level, where the practitioner does not like what is happening and it is perhaps not in the best interests of the child but it is not going to harm the child or anyone else if it continues; and the grey area that sits just above the low-level wellbeing concern and just below significant harm, when a practitioner, using all of their experience and professional judgment, knows that the child is on a pathway to harm. That little grey area—and it is little—makes it difficult for everybody to understand how information can be shared under the data protection provisions.

If it is not health-related data, it is about whether it is a public function in the public interest. If it is health-related data, the necessity is likely to relate either to a public function under enactment or perhaps to one of the other substantial public interest conditions set out in the Data Protection (Processing of Sensitive Personal Data) Order 2000.

Ruth Maguire

Thank you. That was a very thorough answer.

You have partly answered my next question, and the committee has heard about it this morning. To what degree is what you have said understood among practitioners?

Maureen Falconer

It is understood almost implicitly by practitioners. The committee heard from the practitioners today that such decision making happens daily.

In the nearly four years for which I have been speaking about the information-sharing provisions, I have understood from practitioners that making such decisions is something that they do. They face decisions on that small grey area almost daily.

Practitioners do not need to think matters through in the way that I have set out. I am the data protection geek in the room and can therefore say what the conditions for processing are and can understand them. That is not the job of the practitioner. That is the job of the data controller, because the liability rests, in data protection terms, with the data controller—the local authority, private sector school or organisational entity.

It is for the controller rather than the practitioner to work those matters out. The controller has a duty of care to ensure that the practitioner has the confidence and support to make those decisions. I could not agree more with the idea of a flow chart. The information commissioner has said that practitioners need to be able to work through the process. If there is a standard process, matters are being dealt with fairly. Every decision has to be subjective, by its nature. As long as the practitioner has a process that they have worked through, the decision has been made fairly and appropriately.

Gillian Martin

I want to come back to Tavish Scott’s line of questioning to clarify some points.

Dr Macdonald, I understand that the GDPR is European legislation, and that the aspects in the GDPR that will affect the Children and Young People (Information Sharing) (Scotland) Bill will not be affected by any decisions or amendments by the UK Government in relation to the Data Protection Bill. Is that what you are saying?

Dr Macdonald

We cannot guarantee what changes there will be in relation to the various derogations to the UK Government. As it stands, we are satisfied that any changes introduced through the Data Protection Bill would not affect the Children and Young People (Information Sharing) (Scotland) Bill.

Gillian Martin

The Law Society gave the opinion that we should suspend our bill until we find out what is happening at the UK level. I disagree with that and do not think that we should do that, but from what you have told us, there is no point in our hanging back because the GDPR is the top line and everything that we are doing here is compliant with the GDPR.

Dr Macdonald

Not quite. The GDPR is there, but the Data Protection Bill has a number of exemptions that might impact on data sharing and we do not know how it will change in the interim.

In respect of what the Law Society was saying, there is an argument that you should wait until there is absolute certainty. However, we have degrees of absolute certainty—if you can have degrees of absolute certainty. We know where the GDPR applies and the code of practice could certainly have been drafted to be much more GDPR-compliant than it is at present. That would have been helpful.

Gillian Martin

The code of practice is where the flexibility can come in to take account of anything that happens at the UK level.

Dr Macdonald

We are satisfied that the Children and Young People (Information Sharing) (Scotland) Bill will not be affected by Westminster’s Data Protection Bill. However, the code of practice, which is of course integral to the implementation of the Children and Young People (Information Sharing) (Scotland) Bill, might well be.

Gillian Martin

I am concerned about the Children and Young People (Information Sharing) (Scotland) Bill itself. Thank you for clarifying.

Daniel Johnson

I go back to Maureen Falconer’s comments about the grey area. Will the SHANARRI indicators be adequate criteria by which to assess that grey area? Could or should the bill have done more to establish those wellbeing criteria and make the assessment clearer for practitioners?

Maureen Falconer

I am not deliberately copping out, but I do not think that I can comment on that.

Daniel Johnson

Fair enough.

I have some questions on the GDPR and its impact, specifically around consent. Although I accept that the bill might be GDPR-compliant in your eyes, the GDPR will have an impact on how practitioners use the bill, specifically around consent. Is that a fair assessment? What kind of additional requirements around consent, especially considering imbalance, might the GDPR impose on practitioners carrying out these duties?

Dr Macdonald

The big issue on consent under the GDPR is pretty much the inability for public authorities to be using it where there is an imbalance of power. In the higher-level wellbeing type issues, where the child is moving towards the vulnerable stage, it becomes less likely that consent could be used as the condition on which to process. There can be the other conditions, like those that Maureen Falconer mentioned, such as there being a legal duty or being in the public task, and we might have to look more at that in the code of practice.

More needs to be said up front in the code of practice about the GDPR and its emphasis on informing the individual. Let us get the message across to individuals about what is happening to their information and then move into the issues around how we are going to pass it on, if consent is deemed to be the appropriate vehicle.

Daniel Johnson

The Faculty of Advocates commented that the bill should have included a requirement to consider whether to seek consent. Do you agree with that?

Dr Macdonald

I am not really sure how that would work. The data protection framework overrides everything in terms of information sharing and, ultimately, the data controller should be aware of which condition for processing they are using, which means that their consideration whether consent is the appropriate basis is implicit. A requirement to consider whether to seek consent would probably duplicate something that they should already be doing, and I am not sure how you would evidence it, anyway.

Oliver Mundell

I listened carefully to what you said about the GDPR in response to questions from Daniel Johnson and Tavish Scott. The committee wrote to the cabinet secretary asking whether he would be able to produce an updated version of the illustrative code. In his response on 26 September, he said:

“the Committee will I am sure, understand that all of these recent developments make it difficult for the Scottish Government to produce a further draft illustrative code of practice at this stage that would be reflective of a legislative framework in the UK that is not yet clear.”

Given that the key aspects of the GDPR in relation to the bill are pretty much fixed, do you think that we could see an updated illustrative code that would be more reflective of the likely legal parameters that we are working within?

Dr Macdonald

The GDPR was finalised in 2016. That framework could easily have been brought into the code at this stage.

Oliver Mundell

Is it possible to update the code at this point to address the concerns? It might help scrutiny of the bill.

Dr Macdonald

I would have thought that there was sufficient information about the legislative framework that that could be done.

Oliver Mundell

You said that you were not totally satisfied with the Children and Young People (Scotland) Act 2014. Are you totally satisfied with the Children and Young People (Information Sharing) (Scotland) Bill?

Dr Macdonald

We are satisfied that the bill as it stands meets the requirements of the data protection regime.

Oliver Mundell

Are you satisfied that it is compliant with the Supreme Court judgment?

Dr Macdonald

We do not rule on human rights. The issue of compliance will come down very much to the supporting code of practice. The issues were the relevance and excessive nature of the information. It becomes excessive when it moves into human rights aspects of intrusion and privacy. The code of practice is what has to be addressed.

Oliver Mundell

Would you say that, as the bill is currently drafted, it is impossible to scrutinise that interaction without knowing what is in the final code of practice?

Dr Macdonald

I think that it would be difficult for you to be absolutely definitive in your conclusions until you see the final code of practice.

Johann Lamont

This conversation is a million miles away from a teacher or a support worker sitting with a child in a classroom. That is part of the issue of understanding the responsibility. You say that the data controller would sit in the local authority. The individual professional has a duty to consider whether to share information. Would the data controller create a test to ensure that the professional was compliant? What is the relationship between the data controller and the professional? What would be reasonable evidence that the person who has a duty to consider whether to share information has carried out that duty?

Maureen Falconer

The fundamental difference between the two data protection regimes—the current one and what is coming down the line in May next year—is accountability and governance. Whereas data controllers are currently required to comply with the Data Protection Act 1998, come May 2018 they will be required to evidence that compliance. If an information-sharing complaint found its way to us, as the regulator, we would be looking for that evidence. It would be a case of showing us their workings. What was the decision-making process that led them to decide to share that information? We would look at it on a case-by-case basis; the whole duty to consider is on a case-by-case basis anyway.

Johann Lamont

A person with a duty to consider would require to evidence that consideration—the data controller would have to see that there was evidence for an individual decision. Would that have to be written evidence?

11:30

Maureen Falconer

That would be for the local authority to decide. If we take as an example a local authority, as opposed to a health board or the other named person service providers, it would be for that local authority, or its data controller, to put in place the appropriate processes whereby front-line practitioners can work their way through the legislation.

Johann Lamont

Would it be your expectation that, for good accountability and governance, a local authority would put in place a regime for every individual person in the authority who might have a duty to consider sharing information? Would there need to be evidence that there was a process and that every person had complied with that process?

Maureen Falconer

Yes.

Johann Lamont

There would need to be evidence not just that there was a process, but that people understood it and complied with it in every single instance in which they made a decision to share information.

Dr Macdonald

I do not think that we would expect them to comply in every single instance, but we would expect there to be a process and a recording mechanism.

One of the crucial things, which goes back to your much earlier remark, is that staff need to be trained. When we take enforcement action, the big issue is that in probably 90-odd per cent of cases the organisation has failed to train or has given only a very basic, cursory training in data protection at induction, which is then forgotten.

It is crucial that staff are kept aware of the rights and their duties and how to go about them. Again, that comes back to the code of practice being a document that they can refer to and having processes that allow the staff to be confident in what they are doing.

We have said to practitioners before that, if they are in doubt, they should speak to someone, such as their line manager, about the situation. In doing so, they do not need to mention that it is little Jimmy that they are referring to. As one of the other speakers said, they can put forward a scenario and say, “This is what I am facing. What is your view?” People should talk to their fellow professionals and, as they make a decision, they can say that they have spoken to their colleagues, whose general view was that the information should be shared for the following reasons.

Johann Lamont

That would all have to be written up, in every instance in which there was a decision. If there is a duty to consider whether to share, the reason for the decision would have to be written up, along with details of who was spoken to.

Maureen Falconer

Can I clarify something on that? From our perspective, as the regulator of the data protection regime, we would not necessarily come in to investigate whether someone had carried out the duty to share. I do not see that as our responsibility. Our responsibility would be to ask about the basis on which the information has been shared.

Johann Lamont

The legislation says that somebody has a duty to consider and to show evidence that they have considered. Whose responsibility is it to ensure that that has happened?

Maureen Falconer

That would probably depend on whether the subsequent legislation for the complaints process is taken through Parliament in the way that it was previously. The previous complaints process, which was revoked, was that if someone was not satisfied with the legal entity, they would go through the Scottish Public Services Ombudsman, so it is probably the SPSO who would look at the duty to consider. I do not see us, as regulator of the Data Protection Act 1998, looking at that duty to consider.

Johann Lamont

So the individual who makes the decision not only needs to ensure that they are complying with the data controller, in order that there is accountability and governance; they also need to be answerable to the SPSO or be expected—

Maureen Falconer

I do not know. I am talking about the original complaints procedure that went through the legislative process, which was that the SPSO would handle that and would be what we might call the final arbiter of such complaints. Whether the Scottish Government intends to do that again, with the Children and Young People (Information Sharing) (Scotland) Bill, I do not know. The committee would have to ask the Government.

From our perspective, as the regulator, the approach is about what the conditions for processing were and what the legal basis for sharing the information was. The duty is no longer to share, because, under the old act, that would have come under what we considered to be a legal obligation. That is no longer there, so there has to be some other condition for processing that will allow the sharing.

Johann Lamont

Surely it is the legal obligation to consider that would need to be evidenced.

Maureen Falconer

Yes, but that is not something that we need to look at. For us, it is about the legal basis for sharing information. We would not be regulating as to whether someone carried out their duty to consider.

Johann Lamont

But if they considered and then shared, you would surely be looking at it.

Maureen Falconer

Yes, but it would be the legal basis for sharing that we would look at.

Colin Beattie

I want to follow up on something that came up in Daniel Johnson’s questioning. Having read the submission from the Information Commissioner’s Office, my view is that it would be difficult for a layman to understand when a local authority could rely on consent and how the process would work. Maureen Falconer said something to the effect that as a child is heading down the road to becoming more vulnerable, it becomes even more difficult for the local authority to take action to obtain consent. However, a critical point would come on that path where it would have to take action in any case. It does not seem to hang together.

Maureen Falconer

The GDPR is attempting to force public authorities, as creatures of statute, to rely on their statutory responsibilities. You will find that the GDPR talks a lot about public authorities and their public task. There is a job of work for public authorities to do in working out exactly what their public task is. There has been a lack of understanding in relation to the conditions for processing that allow people to use personal information, so consent has often been the default position. However, that has often been meaningless, because individuals have not had a real choice over consent. If people who have been told that someone is going to ask for their consent say that they do not want to give it, it is disingenuous for them then to be told, “Oh, well, I’m sorry, but we’re going to do it anyway.”

What the public authorities have to look to is their statutory functions—their statutory or public tasks. If it is for a public task, they need to question whether consent is the appropriate condition to rely on or whether it should be public function in the public interest.

Colin Beattie

Is there not a possibility that vulnerable children and so on will be put at risk because local authorities will be averse to taking those decisions?

Maureen Falconer

I do not think that they should be—absolutely not.

Dr Macdonald

The Supreme Court decision has possibly encouraged a belief that consent is the only way to share information, but it is not. When we move into child protection issues, there is other legislation involving other duties on professionals working with children and young people that will enable that sharing to take place without consent. As we said, the crucial point is that consent should not be asked for in situations in which it is known that information will have to be shared because the threshold has been reached. In more serious child protection cases, information will be shared anyway and asking for consent will break the trust between the client and the child, which will do them no good service.

Colin Beattie

The Supreme Court judgment said that

“information can also be disclosed if its disclosure is necessary for the exercise of a statutory function”.

What does that mean?

Dr Macdonald

If the public authority—whether it is a local authority, a health board or the police—has a duty to undertake a particular task and that information is necessary for it to do so, it can be shared. In other words, consent is not needed.

Colin Beattie

That would also cover vulnerable children and vulnerable adults, for example, if they were caught up in that particular statutory exercise.

Maureen Falconer

The burden cannot be taken off the front-line practitioner’s shoulders. At the end of the day, it is always going to be a decision that the front-line practitioner has to make. That is why it is incumbent on the organisation to ensure that the policies, procedures, processes and protocols are all in place to give the front-line practitioner the confidence—and the support—that what they are about to do is being done in line with professional judgment. It is about getting that bit right.

I do not see why the data controller cannot have a process flow for the practitioner that says that, in the event that they are faced with a certain situation, there are certain questions that need to be asked and tells them where to go if the answers to those questions are yes or no. That would help to walk the practitioner through the decision-making process and enable them to decide whether the information is the sort of information that they need to share. Often, that is something that the front-line practitioner will get a feel for, as a professional person.

Colin Beattie

Does consent always have to be in writing? Would you expect a child to be competent enough to sign something?

Maureen Falconer

It does not have to be in writing. Again, the GDPR is quite explicit and says that verbal consent is perfectly acceptable.

Colin Beattie

How is such consent evidenced?

Maureen Falconer

You have to have a process through which that consent is recorded. That might involve the practitioner going back and writing up notes and following a subsequent process, for example. Again, it is for the organisation to set out the process that must be followed in order to obtain consent if someone is going down a consensual route.

Colin Beattie

In your submission, you talk about someone having the ability to withdraw consent at any time. How would that be evidenced? Would it be done verbally?

Dr Macdonald

It could be done verbally or in writing. We would certainly encourage it to be done in writing, but in some situations, particularly with children and young people, that might not be possible. We have to put our trust in professionals. We all trust professionals in our day-to-day interactions, and this is just another example of a situation in which that should happen. The local authority, as the employer, will have trained the professionals to deal with such situations and would expect them to do so appropriately. If they do not deal with them appropriately, it is not so much a data protection issue as an employment duty and a disciplinary issue.

Colin Beattie

Is there not a risk that someone who is dealing with a vulnerable person and using a verbal system could get into disputes about whether that person had withdrawn consent?

Maureen Falconer

What the GDPR is trying to say is that you should not lock people into a specific way of doing things—you should not say that consent can be withdrawn only if someone follows a specific process. The GDPR is attempting to give clearer and more emphasised rights to individuals in terms of control over their personal information. If you are going to rely on a consensual model, that is fine, right and proper, but you have to understand that the individual has the right to withhold consent or to withdraw that consent somewhere down the line. Again, if an organisation is relying on a consensual model, it must have in place processes to deal with someone withdrawing that consent. Part of that might involve setting out a process for recording verbal statements in the system.

Oliver Mundell

With regard to the creation of an individual duty, are you saying that it is not possible to detach that duty from some level of individual responsibility or accountability in an organisation when it comes to data practices?

Maureen Falconer

No, I was not saying that.

Oliver Mundell

Okay, so you are saying that, where an individual has a duty to manage or record their own data practices, it can be someone else’s responsibility if that goes wrong. Is that how it works?

Maureen Falconer

I do not really understand the question.

Oliver Mundell

I am thinking of a situation in which an individual named person—in the event that this all goes ahead—is recording and taking evidenced decisions. If they are not compliant with the processes that an organisation has put in place to safeguard their checks, would that individual be responsible for not following data practices, in relation to data protection legislation? Is that how it is seen?

11:45

Maureen Falconer

Not necessarily. Under data protection legislation, liability and responsibility always rest with the data controller, unless an individual does something knowingly, recklessly and wilfully against the normal process and is doing things that they should not be doing. That is what we call a section 55 offence. However, if I do something wrong because I have not followed the process—if I have made a mistake or something—the liability for data protection rests with the organisation and the data controller. That does not mean that the data controller will not then discipline the individual, which happens.

If you look at the actions that we have taken, which you can see on our website, you will see that, although the data controller might bear the wrath of the ICO, the case might involve something that an individual, not the data controller, has done. The problem might have arisen because of a lack of training or because of a lack of good technical patches or processes but, ultimately, it is the data controller who has the liability.

Oliver Mundell

That is really helpful, thank you. I am sorry that I did not do a good job of explaining what I was looking for.

Clare Haughey

For clarity, I would just like to make a point. If I, as a nurse, breached confidentiality deliberately, I would be liable, not the data controller, because I had wilfully done something. Employment law still applies, and employees can still be disciplined for doing something that is wrong.

Maureen Falconer

Yes.

The Convener

That brings us to the end of this evidence session. I thank our witnesses for their attendance.

Fifth meeting transcript

The Convener

Item 2 is evidence from two panels of witnesses on the Children and Young People (Information Sharing) (Scotland) Bill. This is the fifth meeting at which we will consider the bill. We have already heard from the Scottish Government’s bill team, members of the legal profession, health service professionals, local authority education and social work representatives, nursery and early years education representatives and the Information Commissioner’s Office.

Our first panel this week includes organisations that will be required to consider whether to share information with named persons. The second panel will focus on children—for example, looked-after children and young offenders—who are already involved with statutory agencies.

I will start by asking a couple of questions of the whole panel. To what extent will your organisations share information with named person services, do you expect?

Is anybody keen to start?

Judith Tait (Care Inspectorate)

I am happy to start. At present, in our regulatory work, the Care Inspectorate would not share information directly with named person services. Our role is to support and encourage service providers to share information appropriately with named persons. When, on a regulatory basis, we inspect early years services and children’s services, we will encourage them to build good relationships with named person services and share information with them, as appropriate. That will be our main focus when we undertake our regulatory responsibilities.

In our joint inspections of services for children, we will become aware of and consider situations in which wellbeing concerns are getting in the way of a child’s development. Again, we expect that partnerships and service providers will take appropriate action and make decisions about when it is right to share information, rather than that we will work directly with named person services.

The Convener

Before anybody else responds to my question, I apologise for not introducing you all first. Judith Tait is service manager for strategic scrutiny in children and justice in the Care Inspectorate. We also have with us Maggie Murphy, who is senior curriculum manager at Glasgow Kelvin College and is a representative of Colleges Scotland; Detective Chief Inspector Norman Conway of Police Scotland; and Megan Farr, who is a policy officer with the Children and Young People’s Commissioner Scotland.

I thank Judith Tait for answering my question. Anyone who wants to respond to a question should try to catch my eye. Does anyone else wish to respond to the first question?

Megan Farr (Children and Young People’s Commissioner Scotland)

In the majority of our operations, the CYPCS is not an information sharer, but we have an inquiries line and we get inquiries from children and young people and their parents, from professionals and, sometimes, from people who know the child in question. We do not share information without consent unless there is a child protection concern, and we expect that approach to continue.

We have a system to record consent by the child. There are two parts to it: one part is about giving the CYPCS consent, and the other is about giving the local authority or service provider consent to share information with us.

For example, last week we had a case in which we were contacted by a person about an issue regarding a child. The case did not meet the child protection threshold, but was of significant enough concern for us to want to discuss it with the local authority, so we sought the consent of the young person before we contacted the local authority. We usually inform a child if we are going to share information, even in child protection matters. The only exception to that would be if the child or young person would be put at more risk by finding that out.

Detective Chief Inspector Norman Conway (Police Scotland)

Following the Supreme Court judgment, we have carried out quite a lot of work on our concern hub practice and have really tightened up on the duty to consider sharing information, and on justifying sharing of such information with the various agencies. We see the named person service as being just one piece of the jigsaw in GIRFEC—getting it right for every child. Some concerns have been expressed about an avalanche of information going to the named person service: from the police’s perspective, that will not be the case. We would consider who the best people were with whom to share information while acting within the law. Some of that will involve statutory agencies—social work services and maybe the named person service—but there are also opportunities to share information with the third sector.

Maggie Murphy (Glasgow Kelvin College and Colleges Scotland)

Colleges—in particular, the college that I represent—support a high volume of vulnerable people between the ages of 16 and 18, many of whom have statutory involvement with social work organisations and other support-based organisations. As a result, we share information; we do so with the consent of the young person, who is directly involved, and we do it from a person-centred point of view. A college would share information for the safeguarding and betterment of a young person’s involvement in college life, and we recognise the value of doing that on a fairly sustained basis.

The Convener

DCI Conway has already said something about the next point that I wanted to raise. What sort of preparatory work have your organisations done in relation to the duty to consider sharing information?

Maggie Murphy

Glasgow Kelvin College supports members of staff through training on safeguarding and corporate parenting, and staff would be updated on any changes in legislation. They have an understanding of their responsibilities and the duty of care from a safeguarding perspective. There will, accordingly, be continuing professional development for staff under safeguarding and corporate parenting legislation.

The Convener

Does anyone else want to comment on that?

Megan Farr

The CYPCS has looked at the duty to consider sharing information, but the reality is that we already consider, when we receive information from children, young people or other people, whether there is a child protection concern. That is already part of our normal processes; the evidence that has been heard previously suggests that that is also the case for other organisations. Our other concern around the duty to consider sharing information is that it needs to be clear that it does not change the threshold at which non-consensual information sharing occurs.

The Convener

I have a final question. In general, do you support the GIRFEC approach and the provisions of the universal named person service, and do you also agree that information sharing is important if we are to succeed in the objective of improving outcomes for children and young people?

Maggie Murphy

I fundamentally agree with the approach. Glasgow Kelvin College takes a GIRFEC approach and we record young people’s success using the SHANARRI indicators—safe, healthy, achieving, nurtured, active, respected, responsible and included. We fully and whole-heartedly embrace that. There are case studies of young people who have had multiple agencies in their lives while at college, about whom we have shared appropriate information, and who have gone on to thrive, succeed and articulate well.

Megan Farr

We support the getting it right for every child approach and we support the named person scheme, which will make a significant contribution to the realisation of children’s rights. It gives children, young people and their families a single point of contact to access services, which is an improvement on situations that occur at the moment. We supported the named person scheme in the joint letter from children’s organisations that was sent to the Government in June 2016, but we raised concerns during the passage of the Children and Young People (Scotland) Act 2014 about information sharing and the potential for lowering information-sharing thresholds, so we supported the arguments that Clan Childlaw made in relation to information sharing and concern for children’s privacy.

Judith Tait

The Care Inspectorate certainly welcomes the policy intention of the bill. We support the general principles to support practitioners in clarifying their understanding of the right point at which information should be shared, below the child protection threshold. We also welcome the recognition of the importance of professional judgment in making those decisions.

We would consider scrutiny in the context of our having come a long way, to the current position in which partner agencies have ownership of the need to protect and promote children’s wellbeing, and in which the agencies recognise their roles in that. We would not wish momentum to be lost, because that work has come far.

When we are out inspecting, we would be able to identify the levers for promoting positive early intervention, as well as some of the barriers to that.

Detective Chief Inspector Conway

Likewise, Police Scotland fully supports the getting it right for every child approach and the named person service. The bill is an opportunity to bring a bit more consistency to practice throughout the country. We have done a lot of internal work on our standards of information management by taking the rights of the child as part of the assessment process, and in justifying and recording a rationale for sharing information, no matter the agency. What we have just now around the country is a bit of a patchwork quilt with regard to where information goes, so there is a huge opportunity for us to go back to the Christie commission approach in terms of delivering on the prevention agenda, and to get much better at picking up on early warning signs.

Ross Greer (West Scotland) (Green)

I am particularly interested in how this will affect Police Scotland, given its relatively unique position. One of the objectives of the named person service is improved consistency on information sharing. Police Scotland is a national force, so what is your officers’ experience of consistency across the local authorities when it comes to your relationship with social work and schools?

Detective Chief Inspector Conway

That has been a challenge. In-house, we have been able to drive consistent practice on how we manage, assess and share information. That means not sharing all information—we have really tightened up on what is shared and with whom it is shared. The Supreme Court judgment created a fair bit of uncertainty with regard to what could happen, so there were differing interpretations among local partnerships of what it meant for them, and there was a bit of push and pull with the local partnerships about their expectations of when we would and would not share information. We have managed to work through a lot of that.

The bill will probably bring a bit more clarity about the roles, responsibilities and functions in the named person service, and it will declutter the landscape and help us to ensure that children do not fall between the gaps.

Ross Greer

Once the service is fully implemented, how much will it change your current practice? Your previous submissions to the Finance and Constitution Committee, particularly around the concern hubs, indicated that you are, essentially, operating in line with the provisions in the bill.

Detective Chief Inspector Conway

We are fairly comfortable about being on a continuous improvement journey. I have heard examples of things not being dealt with properly, but I hope that they are isolated examples and that there is not a massive issue. We have trained our concern hub staff and we have started to embed the standards of information management and sharing.

The challenge for us is in operational practice. There is further training to be done with our operational officers because every week we deal with quite a high volume of child concerns. The journey of identifying wellbeing concerns, recording them and articulating them to children and families can start in the household at 3 o’clock in the morning, so we need to make sure that our officers get it right at the first point of contact.

Liz Smith (Mid Scotland and Fife) (Con)

I will pick up on the point that DCI Conway has just raised. Concerns were expressed about resourcing in Police Scotland’s submission to the Finance and Constitution Committee. How much time during officers’ training is spent on learning what is right and what is not right with regard to information sharing?

Detective Chief Inspector Conway

Police Scotland has put significant investment into my project, which has been one of the workstreams for the past three years or so. It has been a journey of continuous improvement.

We are still working through the potential implications of the European Union’s general data protection regulation, the bill and the code of practice. We do not have a definitive view on what the training for our operational officers will look like. There is a school of thought that says that we may be able to provide it through e-training, but we might need face-to-face training. There will be a big focus on standards of information.

10:15

It is difficult to be certain about resource commitment and time, but we flagged up in our response to the financial memorandum that the Government should recognise that no account had been taken of Police Scotland’s training requirements. As a caveat to that, however, I add that I do not think that that is insurmountable. Even if we did not have the bill, we would still have to be training our officers in relation to standards, the GDPR and explicit consent.

Liz Smith

I am sure that you would. How much money has been spent on training already?

Detective Chief Inspector Conway

The project that I am involved in—the risk and concern project—has been pretty wide ranging. There have been three workstreams. We have largely been working on concern hub improvement, the Children and Young People (Scotland) Act 2014 and the bill, and we also have the vulnerable persons database. Our project team has been working on that for about three years. It is really difficult to put a costing against that and to strip out what was spent where. In general terms, the workstreams have all run alongside one other. From a police perspective, I think that we are in a much better place than we were in three years ago.

Liz Smith

Thank you for that.

I am interested by the fact that you have obviously made quite a strong complaint to the Finance and Constitution Committee to the effect that you do not feel that resourcing is adequate. To make that judgment, you must have some idea of what is required to make resourcing adequate. Can you expand a little on what money you believe needs to go into training?

Detective Chief Inspector Conway

The complaint in the submission was not in relation to resourcing in general; it was just to recognise that a level of resource will need to be committed to developing and delivering training packages. I am saying that I do not think that that will cause us a huge issue, but we thought that it would be worth our while to flag up to the Government that that had not been picked up in the financial provisions for roll-out of the bill. In terms of our project, the cost in resources could probably be subsumed in other work that we are doing, as we take things forward

Liz Smith

That said, I think that a comment was made that you were a bit surprised that the budget was for only one year beyond implementation. Rightly, in my view, you have made the point that there will be on-going training for new officers. Have the police made any estimate of the cost of that?

Detective Chief Inspector Conway

We do not have a cost against that. If there is an e-based training package, it will be much more straightforward to deliver the training. If there is to be face-to-face training, there will be more implications in terms of delivery, costs and resources.

We are still at the stage of considering what we will need. It is not totally clear what the GDPR is going to look like—we do not know that. In general terms, we will be involved in redrafting the code of practice. This is very much a work in progress, and it is difficult to say at this time what the situation will look like in the future.

Liz Smith

Surely, however, once you know those details it would be practical and sensible to make a recommendation about how much money is required for you to do your job properly. That is the implication of what has already been said to the Finance and Constitution Committee.

Detective Chief Inspector Conway

That is a fair point.

Liz Smith

Okay. Thank you.

Gillian Martin (Aberdeenshire East) (SNP)

I want to pick up on something that DCI Conway just said. You said that you

“will be involved in redrafting the code of practice.”

That gives me an opportunity to ask what you feel, from speaking to the people in your organisation, should be in the code of practice and how it should look.

Detective Chief Inspector Conway

In our written submission, we express some concerns about the heavy weighting towards consent. I know that there are strong views about that. I caveat my comments by saying that I am not an expert on information management and I am not a lawyer, but I have spent quite a lot of time over the past year and a half looking at standards of information management and at schedules 2 and 3 to the Data Protection Act 1998. We have made the point in relation to what is coming, with the GDPR and explicit consent, that we find it really difficult to see how, in an operational setting, explicit consent would be applied. We feel that in the current illustrative draft of the code of practice there is too much weight on consent, and that there is a legal basis for the police and partners to share information in other ways, which we do successfully just now.

It is important that we take a rights-based approach to children and young people, but if I have officers in a really challenging situation at 3 o’clock in the morning, they might find it difficult to achieve the standards for obtaining explicit consent. Officers will often not know what will happen after that when we join it all up in the chronology of the consent assessment process. How can we tell the people concerned where we are going to share their information if the officers do not know that?

The code of practice must be redrafted to give more clarity. There are dangers in going for an exclusively consent-based model, because it will cause real difficulties for the police and, probably, for other emergency services. That model will probably cause us to withhold information that otherwise could have been shared under the current law. I would like to work through that with the Government. I am comfortable that we can support the Government to redraft the code of practice to be more reflective of current law.

I am not dismissing children’s rights—part of our training will always be about seeking the views of children and young people. However, if we ask a child or young person in a house at 2 o’clock in the morning whether they consent to our sharing their information and they agree, but later, as part of the assessment, they say no, and then, at our assessment stage, we believe that we have a legal basis to share that information, there will be tension between what the child or young person said and our statutory duty.

We are comfortable about taking into account the views of the child or young person or of the parent or guardian, as part of the assessment process. However, there are some dangers in going for a practice model that could see child concerns being stockpiled and our not getting the right information to the right people at the right time. Those are the difficulties that we foresee from a police perspective.

As the ICO has indicated, public bodies will find it difficult to meet the standards that will be required for consent. We are not excluding consent, because there will be circumstances in which we will seek consent to share information. However, we will probably look for another legal basis on which to share the information, rather than relying exclusively on consent. That is what we need to work through in the code of practice.

Gillian Martin

That is really helpful. I wonder whether anyone else wants to come in on that aspect.

The Convener

Before anyone else answers, it would be helpful for Oliver Mundell to come in at this point.

Oliver Mundell (Dumfriesshire) (Con)

I hear what you say, DCI Conway, about consent and another sort of test. What do you think that test would look like? With regard to redrafting the illustrative code, do you have a suggestion for us for where that threshold would lie?

Detective Chief Inspector Conway

I do not want to become technical, but schedules 2 and 3 to the Data Protection Act 1998 have other conditions for processing information that still allow us to satisfy the law. Consent is only one of those conditions for processing. If we are looking for a practice model that is more consistent and focused on prevention, with a shift towards family support and away from crisis responses, we need to use the law in its current format. We would still be compliant with data protection and human rights and would tighten up on necessity, proportionality and justification, and would share only relevant information with the right people. There would not be a blanket sharing of information.

Through our statutory duties under the Police and Fire Reform (Scotland) Act 2012, our core purpose to improve the safety and wellbeing of people, places and communities, and some of the core functions of a police constable in preventing and detecting crime, we can look to share information and can justify the sharing of that information as acting in the best interests of a child. However, we can also look at the receiving organisation and assess whether it has a core function, role and responsibility to help that child or young person. Importantly, the current law allows us to do that. Isolated cases may have highlighted where we have got it wrong, but I like to think that training will address much of that. Nothing stands still; a lot is happening and there is continuous improvement across the board. The opportunity is there to act within the Data Protection Act 1998 and the Human Rights Act 1998 without going for the solely consent-based model.

Oliver Mundell

That reply is helpful and interesting. Paragraph 107 of the Supreme Court judgment talks about a “compelling justification” for sharing information. I understand your argument in the context of the police, but other people who might have to interact with the legislation may not have the background experience of a police constable. Do you accept that it will be difficult for them to figure out what “compelling justification” means in individual circumstances?

Detective Chief Inspector Conway

I take your point. My understanding is that the redrafted code of practice will be the high-level document that sets out the standards and that the intention is for each organisation to develop its practice guidance to sit under the code of practice. The guidance cannot be rigid; there has to be flexibility and I accept that there will be circumstances in a controlled environment where consent is the appropriate route. However, we cannot forget about the statutory duties of the police and others to share information. For example, there is a tension with the Children’s Hearings (Scotland) Act 2011 and our duty to share information with the Scottish Children’s Reporter Administration; we could be dealing with a child youth offender and have a statutory duty to share that information with the SCRA but, at the same time, have to ask for consent to share their information with the named person service. We are trying to make the process practical, so that the rights of children and young people will not be ignored but will be taken into consideration as part of our assessment process to see whether we can lawfully share information.

Megan Farr

DCI Conway has covered the situation of the police very well, but other service providers will also share information about children and young people. Information sharing should be based on consent in the vast majority of cases; sharing without consent should be exceptional. DCI Conway has given some examples; a child at 3 am is very unlikely to be able to give consent in that situation.

The majority of service providers deal day to day with children they know. The national health service, local authorities, schools and social workers should be able to provide environments in which there is a relationship with the child or young person and their family within which consent can be freely given and explicit consent can be obtained. The NHS does that routinely in respect of medical care, so the concept is not new.

Evidence was given to members at earlier committee sessions that there continues to be a lack of clarity in the code of practice and other guidance, and DCI Conway mentioned that there are different local authority practices and different interpretations. It is important that the code of practice and other guidance put consent at the heart and make clear that a children’s rights approach should be taken. Article 19 of the United Nations Convention on the Rights of the Child says that the state shall protect children and shall

“take all appropriate legislative, administrative, social and educational measures to protect the child from ... physical or mental violence, injury or abuse, neglect or negligent treatment”.

That is the right under which children’s rights to privacy can be overridden. Information can be shared when children are at risk of significant harm.

The code of practice needs to be clear and understandable for practitioners who work at all levels, bearing in mind that people who share consent will not necessarily be in senior management. It needs to be in language that can also be understood by parents and young people, because there is a need to build confidence in the arrangements that are happening under the Children and Young People (Scotland) Act 2014 and to clarify exactly what will be shared and when, and under what circumstances that will be done on child protection grounds. The Information Commissioner’s Office has produced statutory guidance in recent years that is easy to understand, so we do not feel that it is an insurmountable problem to produce a code of practice that meets those requirements.

10:30

The Convener

To go back to something that Gillian Martin asked about, will you have the opportunity to feed the points that you are making to the committee back to the Government, or have you already done so?

Megan Farr

We met the Government last week to discuss this and we continue to play the role that Parliament set us up to provide, which is to make sure that children’s rights are at the heart of the process. We will continue to feed that into the Government.

Judith Tait

From a scrutiny perspective, our inspection findings tell us that, where the performance of community planning partnerships is strong and positive, practitioners are very reliant on good clear guidance. Guidance and legislation are essential—they are parts of the whole network and framework of how children’s needs can best be met. Underpinning that is the presence of strong and respectful co-operative relationships between partners, which also support positive and appropriate information sharing.

We also see that training is incredibly important. Multi-agency training will have a very positive impact and that should not just happen once but should be revisited. Practitioners need opportunities to come together to tease out the difficult situations. The situations that are clear are clear—people know what to do and they take action. The ownership of the need to protect children means that that is now very well understood across services.

The situations that sit below that threshold—the tricky ones—require good relationships to tease them out, supported by good guidance and by quality assurance arrangements within services that help managers and leaders to look back and ask, “Have we got that right? What can we learn about how we can improve that?” Guidance and legislation are one aspect of being able to meet children’s needs appropriately at an early point.

Maggie Murphy

I agree with most of what has been said about the underlying principles of the code of practice—it should be person centred and should take the young person’s needs into consideration from the outset. The colleges work extensively with authorities and local partners to ensure that young people’s needs are upheld as well as possible, but the code of practice also needs to have a practical element, so that staff can interpret, understand and apply it with a reasonable level of consistency, whatever organisation they represent. If the underlying principles are about the young person being at the centre, there is a better chance that that will be the outcome. It needs to be a practical document that people can understand and use within their day-to-day operational teaching and learning organisation, and it ultimately needs to represent the needs of young people. I strongly urge that that is kept at the forefront.

The Convener

Gillian Martin started off this line of questioning, so I will go back to her, and then Johann Lamont wants to come in.

Gillian Martin

What I am hearing is that there may be an opportunity to improve information sharing. You mentioned that the situation as it stands is a patchwork. It also sounds as though there is an opportunity for joint training so that there is a greater understanding of what each type of organisation faces. Is that off the mark? You are all nodding.

Judith Tait

Information sharing is happening on a joint basis as part of GIRFEC implementation. Across the country in our joint inspections we see evidence of opportunities for joint training. What we do not see so often are opportunities for partners and staff to come together routinely and regularly to revisit that training once they have become more familiar with the process and the guidance. They should come back together to discuss things such as what it is like to put the guidance into operation, how they overcome some of the sticky points in it and what areas people are less clear about. On-going training and opportunities for people to come together are important.

Gillian Martin

I am sorry to butt in, but can I ask about the wellbeing information that is shared? You have been sharing wellbeing information in the concern hub. That word—wellbeing—is right in the middle of the whole thing. How is that being done and how do you see it being done as a result of the bill? How will it change?

Detective Chief Inspector Conway

It will not. Those standards that we apply to the information in the police will not necessarily change, although our operational officer practice will. Under the bill and the code of practice, we will probably find more consistency in the routing of that information and where it goes. It is a good opportunity to define the roles and responsibilities and make it clearer where everyone fits in the bigger picture of getting it right for every child. Traditionally, much of that information has gone to social work teams. There is now an opportunity to look at the role of social work, the named person and the third sector in all of that. There are great opportunities through joint training to get a better understanding of each other’s roles and responsibilities.

Gillian Martin

Will the information go to the person who needs it the most?

Detective Chief Inspector Conway

Yes.

Maggie Murphy

I concur. In colleges we work with some of the most vulnerable and excluded young people in areas that are the most deprived and experience the greatest poverty, and with that comes a range of issues. I cannot do my job in isolation—I have to work in partnership with a range of organisations.

In practice, in the faculty and team that I work to support, it is implicit that staff should be encouraged to raise concerns and to do so regularly, regardless of whether they become full-blown safeguarding issues. The code of practice needs to give staff the opportunity to raise concerns. Collegiate partnership working is imperative if we are to move that forward successfully. We can no longer exist in isolation.

Johann Lamont (Glasgow) (Lab)

I have a specific point for Megan Farr. You said that information should not be shared unless there is a significant risk of harm—that would be the test. How does that sit with the view that we need early intervention? You seem to be suggesting that information should not be shared until there is a crisis, but then there is a problem because you have not done the things that you could have done to prevent the crisis in the first place.

Megan Farr

From a human rights perspective, information should not be shared without consent below the child protection threshold.

Johann Lamont

At what age should the consent be given by the child rather than by their carer?

Megan Farr

The UN Committee on the Rights of the Child’s general comment 12, which deals with the issue of children’s right to have their views taken into account, states that children should be presumed to have capacity unless they are assessed otherwise. In terms of current data protection legislation in Scotland, an age of 12 is set as the age at which the majority of children will have the capacity to consent to information sharing.

Johann Lamont

To play devil’s advocate, I will ask what happens if there is a young person under the age of 12 whom you have concerns about and with whom you need to work at an early stage—there is not a crisis, but you can see that there is a problem coming. As a schoolteacher, I have seen such deteriorating situations. Are you saying that the adult who is responsible for that young person could withhold consent because there is not a significant risk of harm?

Megan Farr

That is the current situation and we feel that there is no compelling evidence that children’s rights under article 8 of the European convention on human rights and their rights under the UNCRC should be breached.

Johann Lamont

What about their right to a secure family situation and their ability to learn? Consent could be withheld by a carer—

Megan Farr

If I could answer—

Johann Lamont

I want to be clear. We are talking about concerns about someone who is under 12 and circumstances in which an early intervention strategy would allow you to come in early to support them. However, you would say that there is a higher test for consent.

Megan Farr

We would say that the approach for children and families that should already be happening under getting it right for every child is that service delivery organisations, schools and the health service should be working in partnership. We have already talked a bit about partnerships. Partnerships should include parents and their children. There should not be a situation in which no relationship has been built up with that family.

Johann Lamont

Do you think that there is ever a situation where the rights of the child and the rights of the carer are different?

Megan Farr

There are such situations.

Johann Lamont

In such circumstances, the carer’s exercise of consent might have an impact on the young person, so would you still apply the same test?

Megan Farr

If, on balance, the child’s right to be protected outweighs the parent’s right to exercise article 8 of ECHR on behalf of their child—if the child is below 12—we would say that the right to be protected takes precedence, in which case the information could be shared. I have expressed that in human rights language, but it is, in effect, the current situation with regard to child protection.

Johann Lamont

Policy on early intervention comes up against that.

My final question is on a theme that has come up in other evidence sessions. The duty that will apply might lead to defensive practice on the part of those who make decisions about information sharing. If someone has a duty to share, that is pretty straightforward; if they have a duty to consider whether to share, and there is some question about what evidence they must give to show that they have done so, people might, in certain circumstances, think that they should not pursue something, to be on the safe side. Is that a concern of anyone on the panel?

Megan Farr

That is a concern that we have, in that we have heard of cases in which child protection issues have not been shared.

We have also come across examples of people not sharing information with their line management. That is not information sharing in terms of data protection; it is how organisations operate. For example, it is normal practice for a classroom assistant to inform their line manager of a concern, so that is not “processing” under the data protection legislation.

Maggie Murphy

As I said, Colleges Scotland offers training on safeguarding and corporate parenting to front-line teaching staff, reception staff and support staff. We take a holistic approach to understanding the underlying principles of safeguarding and we encourage conversation and information sharing as much as possible. We try to ensure that staff get appropriate continuous professional development, so that they understand their roles, the legislation and the jurisdictions around that and can protect themselves and the young people who attend their college campuses. I think that the principals are pretty clear on that.

Johann Lamont

Is there a new approach as a consequence of the Supreme Court ruling? Has the ruling made practitioners more cautious than they would have been before?

Maggie Murphy

I think that if a good code of practice and good training are applied, that will not be the case.

Detective Chief Inspector Conway

Many years ago, we probably shared only at the child protection threshold, and we have been on a journey since then. After the ICO guidance in 2013, we started to think that we had good grounds for actively sharing wellbeing information about children.

Following the Supreme Court judgment, we have tightened up on individual rights and the information that has been shared, but I would not say that that has been defensive practice. I would say that we are balancing the rights of individuals with the need to act in children’s best interests. There should not be defensive practice but, from a police perspective, I am fairly comfortable that how we deal with information about children and young people has improved.

Judith Tait

I agree. We have come a long way in relation to partner agencies’ ownership and understanding of their responsibilities to look after and promote children’s wellbeing. From our scrutiny work, we know that, where wellbeing concerns have been acted on, for the majority of children safety has been improved further down the line. The decision to share information is a highly complex one for practitioners. They must take into account a whole set of variables, such as what they know about the child and the family, the child’s presentation, child development and the impact of adverse events on the child. A code of practice needs to support professional judgment in coming to the conclusion that data must be shared.

Although since the Supreme Court judgment there has potentially been a dip in the confidence of people who undertake the role of named person that they know what they should be doing—and I would not want any more momentum to be lost—I think that the commitment to get it right and share information at the right time and in the right circumstances is strongly held across the country.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

Gillian Martin asked about the term “wellbeing”. Is there a common concept of wellbeing? Does everybody share the same understanding of what it means? That is quite important.

10:45

Judith Tait

The wellbeing indicators provide a very helpful framework for practitioners. Across the joint inspection programme, we have seen practitioners develop confidence in understanding the holistic needs of children. There will inevitably be some differences in the interpretation of terms such as “responsible” and “respected” and what they mean for children of different ages. However, the more practitioners come together to debate and discuss those issues, and to consider what their role is in promoting children’s wellbeing, the further down the road we will be towards a shared understanding of language and what positive wellbeing means.

Detective Chief Inspector Conway

I support that. The vast majority of wellbeing concerns that the police deal with relate to safety and health, and the indicators are really good in enabling us to assess the need to share information where we have a legal basis to do so.

Maggie Murphy

I concur with Judith Tait. Our understanding of the principles of wellbeing is consistent and that understanding is ever growing and is shared through the work that colleges do with secondary schools so that there is a seamless transition for young people who move from secondary schools to further education. We share a common understanding of wellbeing and we apply the SHANARRI principles accordingly, so I am pretty confident that we are consistent in our approach to standards of wellbeing.

Megan Farr

We see a good understanding across different sectors, and the SHANARRI framework in particular is used to provide holistic assessments of children’s wellbeing. It is a good way of ensuring that children’s rights are realised.

Colin Beattie

Am I correct to interpret what you have said to mean that there is a core of understanding of what “wellbeing” means, with variations within disciplines that interpret the term as it applies to individuals? I have said that rather clumsily—I am trying to get at the question of whether there is a little bit of flexibility in how you apply the term.

Maggie Murphy

We recognise that we represent different organisations—for example, I do not see children, as I work mainly with young people. I see those young people in an educational context, and the indicators for them will be applied in a classroom environment so that my staff can pick up on any deterioration or issues in that respect. There are nuances and differences, but the principles are applied consistently.

Judith Tait

From our perspective, the indicators have been helpful. In the past, when we were viewing plans for individual children as part of an inspection, we found that education staff focused on their role in supporting achievement. As confidence in the use of the wellbeing indicators has grown among professionals, we see that they recognise the range of contributions that they can make across those indicators. Children’s plans will recognise the contribution of teachers and schools in meeting the “respected” and “responsible” wellbeing indicators as well as the “healthy” and “active” indicators. The new approach has broadened understanding among professionals of how they can contribute to wellbeing.

Colin Beattie

Again I am interpreting a little here, but am I correct to say that too rigid a definition or description of wellbeing in the bill or wherever might be counterproductive? Having a little bit of flexibility within each discipline is perhaps the way that it should be.

Detective Chief Inspector Conway

I agree with that. A rigid definition could be applied in black and white, and practitioners could make decisions that do not fit the definition. The indicators allow for enough flexibility, bearing in mind that every concern regarding a child should be judged on its own merits. They are only indicators; they are part of a whole assessment process and a wider chronology for a child or young person.

Colin Beattie

Will the changes that are coming through the GDPR and so on affect your interpretation of the concept of wellbeing in any way, or will the core remain unchanged?

Detective Chief Inspector Conway

Off the top of my head, I do not think that there will be any impact on consent or on the SHANARRI indicators.

Maggie Murphy

I do not think that the principles should change because of the new regulation regime. We should still operate from the same position on wellbeing.

Daniel Johnson (Edinburgh Southern) (Lab)

We are looking at information sharing on the basis of wellbeing. We have established that, under existing law, information sharing already takes place on the basis of welfare and, to some extent, wellbeing. I am interested in how the bill will change things. Judith Tait and Maggie Murphy, will you explain what information you currently share in relation to wellbeing and on what basis you share it? Will you bring that to life and maybe give some examples?

Judith Tait

Within the regulatory responsibilities, when we inspect care services for children, we will discuss how well the service is recognising the wellbeing needs of the children for whom it provides a service. If we believe that there are concerns for a child’s safety, we will direct the service to take action, but we may also refer directly if we believe that the threshold for child protection has been met. Where the concerns sit below that, our role will be to encourage the provider to take appropriate action and to share information with the named person service. We do not share information directly with the named person service ourselves.

In our joint inspection programme, we review records of vulnerable children. Those children already have a lead professional and a multi-agency plan, so information will already have been shared widely within the appropriate group of professionals.

Maggie Murphy

I will give the college perspective, particularly in the areas for which I have responsibility. The majority of young people who come to me will have been referred by school or social work, so from the outset information comes to me from another organisation. The referral document will have key indicators and pieces of information about wellbeing and associated factors.

In the college environment, a young person will be in possession of an individual learning plan, to which they contribute significantly, with learning targets and goals that they want to achieve throughout the year. The staff who are part of their curricular area add relevant information to those plans.

Young people who come from school come with a wellbeing assessment plan, which has key indicators. We use the college experience to try to nurture and develop them.

Those are two examples of where colleges work in partnership and share information accordingly.

Daniel Johnson

This question is for the whole panel. So that sort of information, which is not information that must be shared when the child protection criteria are met, is already shared by everyone without consent. Will the bill change the nature of the information that can and will be shared?

Detective Chief Inspector Conway

The bill will probably strengthen things by bringing in statutory functions for the named person service as part of the assessment process for sharing information under data protection legislation. Defining the functions, roles and responsibilities of a named person service will bring more consistency in the models across the country, so there is a positive.

I mentioned the patchwork quilt, which is the current position. By putting the named person service on a statutory footing and giving greater clarity on the information-sharing arrangements, the bill will bring greater consistency in practice across the country and probably reduce inequalities in service provision.

Daniel Johnson

To be fair, in the bill, that clarity is restricted to the duty to consider. Is that sufficient?

Detective Chief Inspector Conway

I think it is and it will be underpinned by the code of practice. We need to get the code of practice right; that has been a common theme today. The bill, which will put the named person service on a statutory footing, and the code of practice will declutter the information-sharing landscape for me; it will provide greater clarity.

Daniel Johnson

You are absolutely right about the need for clarity.

My last question is for Megan Farr and is specifically on that point. Your written submission states:

“We were concerned that the threshold for sharing data proposed by the CYP Act had been lowered to a point where there was a risk of the child’s right to privacy might be violated. The current bill does not add any clarity on this.”

Will you expand on your concerns? What changes need to be made to the bill to give that clarity?

Megan Farr

Our concern was that there was no clarity in relation to concerns about wellbeing, to go back to that question. Our view is that such information should be shared on the basis of consent, which is in line with how getting it right for every child should work.

We would be concerned if parts 4 and 5 of the 2014 act continued to be delayed, because they are important and the named person service is an important way in which children’s rights will be realised in Scotland. However, it was not clear whether a threshold is being created that is lower than the child protection threshold, particularly if it is based on a risk of harm to wellbeing—indeed, at one point a phrase was used about the risk of being on a pathway to harm. I am not sure that the duty to consider adds anything, because it does not change the threshold; it merely says that practitioners need to think about whether an issue meets the threshold, and that should already be happening—it is good child protection practice in service delivery organisations, and practitioners are regularly trained in child protection and should be aware of what is likely to be a child protection concern. It might be that the child protection threshold needs to be adjusted, but our concern with the 2014 act was that there was potential for the threshold to be interpreted as being considerably lower.

Daniel Johnson

Finally on that, it strikes me that there are some key points of principle around information sharing that, frankly, are not in the bill but will be in the code of practice. Principally, they are to do with consent and the rights of the child. Should those be in the bill? Given the importance of the code of practice, should it have a greater level of scrutiny, rather than being—in essence—in the gift of ministers?

Megan Farr

It is really important that the code of practice receives scrutiny, to ensure that it can be understood by practitioners, older young people—not all children will be able to understand it—and families. In fact, it should be able to be understood by everyone, so I think that it needs scrutiny. The most important aspect of the bill will be putting a clear code of practice and clear guidance in the hands of practitioners who share information so that everyone has confidence that it is being shared appropriately.

Daniel Johnson

The other part of my question was about whether the issue of consent should be in the bill.

Megan Farr

In line with the Government’s commitment to taking a human rights-based approach, such an approach should be taken.

Clare Haughey (Rutherglen) (SNP)

Unfortunately, I have a question for DCI Conway—sorry, but we seem to be targeting you. You mentioned a concern hub. For those of us who are unaware, could you tell the committee what that is and how it functions?

Detective Chief Inspector Conway

Sorry, I should have explained that earlier. The vast majority of concerns that we deal with regarding members of the public are not protection threshold concerns but wellbeing concerns. There is a significant amount of information there that we need to understand better. When we moved to Police Scotland, we put in place concern hubs in every division. They have dedicated staff who are trained in standards of information management. However, it is not just all about information management; it is about picking up on the early warning signs.

We have a strong evidence base going back many years relating to cases in which repeat concerns came up regarding children and the police and our partners did not pick up on them. The hubs and the staff in them consider standards of information management, respecting individuals’ rights and balancing those with acting in the best interests of a child or adult, but they also look to deliver early intervention and prevention—actually, they are looking to deliver on getting it right for every child. The advantage of starting to record chronologies regarding children is that, instead of having the information in a lot of places so that it is not visible, we have it in one place, which helps us to make a better assessment of what services might best be used to provide support or to intervene. That is better than waiting until there is a crisis response or until protection thresholds are crossed, because traditionally that approach has gone wrong and it has been far too late.

It is about a focus on Christie, trying to bring a greater focus on early intervention and prevention, and a bit of information management and standards in relation to the Data Protection Act 1998.

There are 13 hubs in the 13 divisions across the country, and their daily role is to triage the information in the morning, research it, assess it and then take a decision on whether to share it. When they take that decision, they put a strong emphasis on recording the rationale so that there is an auditable record of why something went somewhere. That is a real tightening-up of practice compared with where we were previously.

11:00

Clare Haughey

Will the bill be advantageous for the concern hubs? Will it make things easier for Police Scotland in relation to information sharing and the ability to direct information to the correct person?

Detective Chief Inspector Conway

Yes. I do not think that it will have a significant impact on the daily operation of the hubs, but it will have an impact on where the information is routed to. The statutory named person service will be only a piece of the jigsaw. Not all our information regarding children will go to the named person service. We will be looking at other routes, and some of that will be done with consent, particularly when we consider the third sector organisations that have really strong services to support children.

Ruth Maguire (Cunninghame South) (SNP)

Good morning, panel, and thank you for being here. I want to ask about data protection. We have heard in your evidence this morning that information sharing is already going on and is working well for you, but we have heard previously in evidence that people are concerned about information sharing. I would like to know how much of the challenge—if there are challenges or concerns in your organisations—is about the GDPR rather than about the specifics of the bill. Obviously, the GDPR is on the horizon and has an implication.

Maggie Murphy

We are less concerned about the GDPR. We are comfortable with the various documents and the information that we have in the college environment, and we are also comfortable that we share the right information at the right time with the right people. The focus in the Children and Young People (Information Sharing) (Scotland) Bill is on a learner-centred approach—the young person being at the centre. The GDPR will be a little later for us, but I do not think that it is seen in any way as an impediment.

Detective Chief Inspector Conway

The GDPR is more of a concern to the police—the requirement in relation to explicit consent and how that will operate in practice, how we will inform people of their rights, how we will have an auditable record of the consent and how we are going to do that in really challenging circumstances. I am probably more concerned about the GDPR than I am about the bill.

Judith Tait

We will continue to be interested in how well partners that we are inspecting are sharing information and acting within their policy and guidance. As well as considering the impact for us, we will be interested to see how providers are interpreting that.

Megan Farr

We will continue to look at the GDPR in relation to children’s rights. As an organisation, our provision of a service is not dependent on whether young people give consent, so our current practice will continue. We share information without consent only very exceptionally.

The Convener

Thank you.

Oliver, you wanted to come in. Will you make it brief?

Oliver Mundell

I will be as brief as I can be.

The Convener

That is not good enough. [Laughter.]

Oliver Mundell

Sorry, but it is quite a technical question. I want to refer to two bits of the Supreme Court judgment and then ask Megan Farr a further question that follows on from her responses to previous questions.

Paragraph 79 of the Supreme Court judgment references the judgment in the case of Gillan v United Kingdom, which talks about who an instrument applies to and

“the number and status of those to whom it is addressed.”

I think that you touched on it being addressed to children of 12 and above who might be looking to understand it. That links with paragraph 81 of the Supreme Court judgment, which talks about

“sufficient foreseeability to allow a person to regulate his or her conduct”.

I wonder whether, given the flexibility that comes with the SHANARRI indicators and the flexibility that some other people are looking for in information sharing, it is possible to have legal certainty and retain that flexibility in a statutory form.

Megan Farr

I think that there are two questions there, one of which is about the age at which children have capacity. We have legislation in Scotland dating from 1991 about the age of legal capacity and the age at which children have the capacity to make decisions about medical matters, and that age coincides with the age at which children in Scotland have capacity around data protection under the Data Protection Act 1998: the age is 12. The age of 12 is therefore the age of capacity in current legislation. The United Nations Committee on the Rights of the Child would argue that children below the age of 12 could also have capacity. In fact, that is also the situation with both legal and medical capacity. Those tests around capacity are fairly well established in Scots law with regard to the age at which children are able to make decisions.

Sorry, but was the second part of your question around SHANARRI indicators and wellbeing?

Oliver Mundell

It is about whether the indicators can be quantified in a way that meets the Supreme Court judgment but also retains the flexibility that practitioners are looking for.

Megan Farr

The Supreme Court judgment said that, in practice, information sharing might result in a disproportionate interference in the article 8 rights of children and young people and their parents. We talked in our written evidence about achieving a balance, and I mentioned earlier the balance between the protection of children and their right to privacy. Decisions on that will have to be made on an individual basis. I think that we have all agreed that the important point about the code of practice, which is a vital part of the legislation, is that it must be clear enough—as must the guidance accompanying it—to enable practitioners to make judgments about what rights, on balance, must have priority.

Oliver Mundell

Does it not also need to be clear enough to allow children with capacity to make a judgment about what they choose to share? In order to regulate their behaviour, they need to have that foreseeability.

Megan Farr

Our view is that the majority of service providers who provide services to children on a daily basis—social work, the health service and third sector organisations working with children—should have an environment in which children can freely give explicit consent to share information. DCI Conway talked about situations in which the police are not in that position. However, our view is that, from a human rights perspective, that consent should be possible for children with capacity. Under current Scots law, a child of 12 can instruct a solicitor to bring an action in court, so that capacity is not a new concept.

Oliver Mundell

That is fine. You also mentioned that you met the Government to discuss concerns about the draft code of practice.

Megan Farr

The discussion was on a range of matters, but we did discuss the draft code of practice. I reiterated to the Government what we said in our written evidence to the committee, which is also what I have said today.

Oliver Mundell

And the Government seemed receptive to changing the draft code of practice.

Megan Farr

I think that the Government took my comments on board.

Oliver Mundell

Thank you.

The Convener

I thank the panel members for their time this morning and for answering all our questions.

I suspend the meeting for a moment or two to allow the witnesses to leave and the second panel to come in.

11:08 Meeting suspended.

11:12 On resuming—

The Convener

I welcome the witnesses for our second panel: Ben Farrugia, head of development and innovation at the centre for excellence for looked after children in Scotland; Donna McEwan, practice development adviser at the centre for youth and criminal justice; and Teresa Medhurst, director of strategy and innovation at the Scottish Prison Service. Thank you all for attending. You should indicate to me if you would like to respond to a question and I will call you to speak.

I will start things off. How would you expect to be involved in the development of the final code of practice? Would you expect there to be any substantive differences between the code that is issued under part 4, on the named person, and the code that is issued under part 5, on the child’s plan, of the Children and Young People (Scotland) Act 2014? Could the same document cover both requirements?

Ben Farrugia (Centre for Excellence for Looked After Children in Scotland)

Good morning and thank you for inviting us here today. On the first question, we are a Scottish Government-funded part of the University of Strathclyde. We were set up to support the Scottish Government in the realisation of its objectives on looked-after children and child protection and to support our partners across the sector in their own efforts. In that respect, we would expect to contribute to the work that the Scottish Government is about to undertake on the code of practice and revisions to statutory guidance on parts 4, 5 and 18 of the 2014 act.

Our organisation works across the multi-agency partnership that works with children. We have a valuable perspective on what information sharing and practice to support children more generally looks like in a multi-agency context. We also cover the whole country, which, to pick up on what members of the previous panel said, brings an important perspective on the patchwork element that we see across the country. We can bring that information to bear in the next stages of the code of practice revision.

The Convener

We can talk about the first aspect of my question and then go back to the second part.

11:15

Donna McEwan (Centre for Youth and Criminal Justice)

Please excuse me—I have a bit of a sore throat, so I apologise if I am not speaking clearly. The CYCJ is similar to CELCIS in that we are a Scottish Government-funded agency. We support practitioners and promote development in supporting children and young people who are involved in offending behaviour, and their families, across the country.

In particular, we provide support and promote the development of practice and understanding when new legislation comes in. We hear from practitioners on the ground and take that information back, along with people’s lived experience. We look at the legislation and support practitioners to translate it into practice.

I met the Scottish Government last week to discuss the bill and the proposed code of practice. The Government is keen for us to be involved, to provide support and to use our links with practitioners and people’s lived experience to inform the code of practice as it moves forward. That is crucial in enabling us to undertake our role in supporting the application and development of GIRFEC across the country.

Teresa Medhurst (Scottish Prison Service)

Over the past few years, the Scottish Prison Service has worked closely on transforming practice, in particular in Polmont, where the vast majority of 16 and 17-year-olds are located when they come into custody. We have developed a positive futures plan that is based on the SHANARRI principles and informed by the work of the organisations that are represented today.

We have moved towards applying the best-practice principles that have been set out for case conferencing and information sharing. We have worked, and will continue to work, closely with the Scottish Government in order to be part of and inform the code of practice as it is revised.

The Convener

The second part of my question was about substantive differences between the code that is issued under part 4 and the code that is issued under part 5. Could the same document meet the requirements for both parts?

Ben Farrugia

Yes—I believe that the same document could cover both parts. There are distinctions between the two parts, particularly with regard to the populations of concern with whom CELCIS, the CYCJ and the SPS work. The same document could cover both parts, but not necessarily in the same chapter, if that makes sense.

Donna McEwan

I agree that the same document could apply, but it would have to be quite explicit in relation to part 4. We would need clarity on the different parts of the legislation in order to support practitioners who are applying it in understanding what it means in relation to decisions. We would also need clarity on the triggering of a child’s plan and how that fits with the questions that have been raised about the named person role when people choose not to be involved with the named person. Those aspects must be clarified in the code of practice.

Teresa Medhurst

I agree with the two previous speakers.

Liz Smith

What specific changes do you foresee in the rewritten code of practice that are not in the illustrative code?

Donna McEwan

I am happy to take that question. Through speaking with practitioners prior to the Supreme Court judgment, the CYCJ was involved in developing case examples for the 2014 act. Although the act came into force last year, the named person aspect did not. The code of practice therefore needs examples of wellbeing concerns. We should make the different elements of legislation, including the Human Rights Act 1998 and schedules 2 and 3 to the Data Protection Act 1998, easy to understand for practitioners who apply them. As has been said, children and young people and their families need to understand the legislation, too. Using examples would be beneficial so that workers can see what happens in the process.

Liz Smith

Would you go beyond the SHANARRI indicators in defining wellbeing, given that the witnesses on the previous panel told us that there are differences within different professions?

Donna McEwan

When I heard that, I thought that it was quite relevant. I am a social worker by trade. Our understanding of wellbeing shares the same overarching principles as that of other professionals, such as health professionals, but there might be nuances to how we apply our professional knowledge and skills to that understanding. There needs to be flexibility, because there is a concern that if we make the definition too rigid, we will rule out a universal approach. When we talk about wellbeing concerns, we are looking for universal responses to prevent children and young people from being escalated into statutory services.

Liz Smith

It is interesting that you make that point. Some previous witnesses have said the opposite—that they feel uneasy in deciding when they should share information, because they are uncomfortable that the definition is not tight. Do you accept those concerns?

Donna McEwan

I accept that practitioners in other professional disciplines might feel that way. I know from my experience as a social worker that, when it comes to understanding presentations, whether in the context of wellbeing concerns or higher-level welfare concerns, we have to filter our approach through our professional knowledge and understanding of the individual child, the child’s specific context and what that might mean. Only then can we decide whether we should be sharing the information. As professional social workers, we might make such decisions more regularly and might deal with more nuances than do other professions, in which stricter or tighter criteria might apply.

Liz Smith

So your advice would be to have different codes of practice in different professions to get over that problem.

Donna McEwan

We could share the same code of practice, but there would need to be flexibility in the definition of wellbeing.

Clare Haughey

I will pick up on the issue that Liz Smith asked about. My professional background is as a healthcare worker, so I am used to working closely with social work and third sector organisations on the SHANARRI and wellbeing principles. In those professions, there is a good common understanding of the SHANARRI and wellbeing principles, but the members of the panel work with much wider professional groupings and organisations. Do those other professions interpret the SHANARRI and wellbeing principles differently? How do you see that working in achieving a common understanding with other professions?

Ben Farrugia

I can go first on that question, and I will also answer some of the previous questions.

I think that the first panel gave a good answer. There is a core understanding but, as has been hinted, there is divergence at the edges, when we get into the detail of what wellbeing might look like in respect of some indicators. It has been implied that the introduction of wellbeing has created confusion about when to share information, but the experience of our work is that that confusion has always been there. The introduction of wellbeing has given us a different narrative on that, but professionals have always wrestled with such questions.

Through some of our work, we have encouraged professionals to see the introduction of “wellbeing” as a way of widening our lens when it comes to how we view children rather than as a lowering of standards or something that is separate from welfare. We want professionals, instead of concentrating in their work with a child on a narrow bit of a child’s life in school or in relation to health, to broaden out their consideration and to think about the wider context of the child, which is what the SHANARRI indicators encourage people to do. When we talk about planning and assessment, that has implications for the child’s plan in a more real sense.

It is easy—it is understandable that this happens—to get caught up in conversations about welfare and wellbeing and different professionals’ understanding of those concepts, but we are talking about a broad approach that involves enabling professionals to have a more holistic understanding of children rather than the introduction of a specific new category of need.

Donna McEwan

I agree with what Ben Farrugia said—it makes sense to me. We want a holistic response and recognition that children exist within their circle of friends, their peer groups, their school, their home life and their community. We need to think about what wellbeing means for each individual child.

As professionals, under the SHANARRI principles, we are all responsible for the wellbeing and the safety and protection of our children. There is common ground when it comes to the understanding of wellbeing, so we are talking about widening that out around the edges and recognising the various professionalisms that might have something more to bring. Those in health services might have more to add than I would as a social worker and we need to recognise those skills and that knowledge, too.

Clare Haughey

I suppose that I am speaking from my professional point of view, but does the panel agree that SHANARRI and GIRFEC have given professionals and others a common language to speak when we are dealing with wellbeing and child protection issues? You are all nodding.

Teresa Medhurst

For the SPS, which is mainly a custodial organisation, SHANARRI gives much more clarity to the staff who deal with young people, and it provides a common language to use in case conferences and when talking to other professionals who come to work in Polmont. It is not only that the language is shared, but the understanding has been increasing. It has definitely been an improvement for us.

Ben Farrugia

I will go back to an earlier point about the code of practice. Since we submitted our evidence to the committee, I have been advised on and have learned more about the limitations on a code of practice—on how much it can include—because of its status in law. I do not want to contradict my colleagues—I totally agree with their points about what needs to be available to practitioners—but I understand that there are limitations on what can be in the code of practice, which means that the guidance that accompanies it becomes particularly important.

That is an opportunity, because there is much more flexibility with guidance—statutory or not—than I understand there can be in the code of practice. Our expectations are now perhaps less about seeing lots of changes being introduced to the code of practice, but what sits with it and what is available to practitioners will become even more important.

Johann Lamont

That is not necessarily the evidence that we have heard from others, who feel that the legislation will stand or fall by the code of practice’s ability to give confidence to practitioners and those whose information may be shared that the approach will be in line with the Supreme Court judgment. You spoke about there being different chapters, but I am not sure whether you think that that is in line with what is expected from the legislation. Basically, if you are saying that there will be chapters, you are just collating different codes of practice in one place.

Ben Farrugia

I am sorry—I think that we do need some distinction in the code of practice between parts 4 and 5 of the 2014 act, and that is what I was acknowledging in talking about distinguishing those and having separate pages. In my previous point, I was picking up on my colleague Donna McEwan’s point about the need for things such as practice examples, case study work and everything else. My understanding is that it would not be the easiest thing to incorporate that into what is quite a legal document, in which quite restrictive language might be used.

We definitely need a code of practice that is clear and accessible to professionals, but that will have to be supplemented by further documentation and work. Documentation and training alone will not move us to the culture of information sharing that we want in Scotland. Those things are essential, but they are not sufficient on their own.

We need to attend to structures of supervision in real time—who can professionals turn to for advice and guidance about complex cases? There are established processes in social work and health, and such things happen in some of our best schools, too. We must learn from those processes and ensure that they are available to all professionals in the relevant areas.

The Convener

The cabinet secretary will be here on 8 November, when I am sure that we will get clarification about the code of practice—not exactly what will be in it, but the sort of code of practice it will be and the guidance that will go with it.

Johann Lamont

You might have heard me put the next question to the earlier panel—it concerns the issue, which we raised in previous evidence sessions, of whether the situation might lead to more defensive practice. Is that the danger of the changes? Rather than people being more confident about sharing information, they might be more hesitant and anxious about how to meet the duty to consider sharing information. Do you think that that might be the case? Will gathering the evidence that they will need to show that they have considered whether to share information be an extra burden on people who work in this area?

Donna McEwan

In my previous practice as a social worker, I was involved in early and effective intervention, which is part of the Scottish Government’s whole-system approach to supporting young people and children who are at risk or are involved in offending. Early and effective intervention is for children from the age of eight to the day before their 18th birthday who are involved in low-level offences.

In relation to—I am sorry; I have lost my train of thought.

The Convener

We have all done that.

11:30

Donna McEwan

It is because I have a cold.

Johann Lamont’s question was about defensive practice. Following the Supreme Court judgment, there were examples of people withdrawing from sharing information because they were anxious, concerned and unsure about the situation. However, that has now been redressed, because we have had an opportunity to look at our practice and make sure that we are sharing information in a proportionate and appropriate way that meets children’s needs.

There is a concern that there might be defensive practice and that people might pull back from sharing, but it is really important that we get this right and that we share the right information, so that children and their families, when they choose to engage with named person services, can get the right support at the right time to reduce the risk of situations escalating. Having a clear code of practice, with additional guidance, would support practitioners and children and their families in understanding what the situation is with sharing information.

Teresa Medhurst

I agree. We are moving towards a more rights-based approach but, in all our decision making, we look at proportionality and, especially in our work with 16 and 17-year-olds, we are aware of the requirement to work with the young person and their family and the lead professional, as well as to ensure the individual’s safety. Given that such work is a small proportion of what we do, we will need to give our staff appropriate support and guidance. I do not see that the bill will lead to more defensive practice in decision making.

The Convener

Daniel Johnson and Ruth Maguire have questions, but they can ask them later on.

Colin Beattie

I want to ask about the child’s plan. Children and young people who are involved in the criminal justice system and looked-after children and young people might need targeted interventions, from which a child’s plan could well evolve. To what extent is information on wellbeing shared in existing multi-agency practice?

Ben Farrugia

If we conceive of wellbeing information as being information on different components of a child’s life, such as their education, their health and aspects of their home life, such information is core to the child’s plan. There has been a statutory obligation to provide a child’s plan for looked-after children since 2009—and, indeed, prior to that in different forms. For us in the looked-after-child world, the introduction of a child’s plan in part 5 of the 2014 act consolidates what should already be there.

A good plan talks to as many different components as possible of information that we conceive of as wellbeing information in giving a holistic assessment of the child.

Colin Beattie

I refer to parts 4 and 5 of the 2014 act. In part 5, which is on the child’s plan, there is a duty to share information in relation to the child’s plan, but in part 4, which is on the named person service, the duty is to consider sharing information. How will that work?

Ben Farrugia

I will have the first go at answering that, but my colleagues might have different views. My area of expertise is looked-after children, where there is a child’s plan already. Organisations that are under a statutory obligation to provide a range of services and support for such children have to share information in that context in order to undertake their functions. That is one of the permitted areas in which public organisations can store and process information. We are comfortable with the duty to share information in relation to the child’s plan, because it reflects current practice and current statutory obligations.

The duty in part 4 to consider sharing information seems appropriate to us. That reflects the contribution that we gave to the committee back in 2014 when the Children and Young People (Scotland) Bill was being considered, and our concern that a duty to share for named persons would put at risk what you heard about earlier from the witnesses who eloquently discussed children’s rights to privacy and so forth.

We believe that the duty to consider sharing information adds emphasis by requiring professionals to think about whether they should talk to other professionals about something—it is probably more appropriate, in the first instance, for them to think about talking to other professionals in their organisation, which is not information sharing as defined by law, and then with the family as well.

Colin Beattie

Do other witnesses have comments on that?

Teresa Medhurst

The position at the moment is that the child’s plan will be shared when somebody comes into custody if they are a looked-after child or if a child’s plan exists, and the criminal justice social work report will be shared with us as well. There already exists a case conferencing system that allows that sharing of information, and our positive future plan, which supports the individual’s journey through custody, is also based on the SHANARRI principles, so it is about wellbeing. The information that is shared around the child’s plan during the period in custody is very much focused on wellbeing and supporting the individual.

In relation to the named person, as I said earlier, we will require to support our staff—our named person will be at senior management level—to work through the decision-making process and ensure that they are making appropriate decisions based on proportionality and the rights of the child. However, our work is based on positive engagement and we will absolutely work to get consent from the individual.

Colin Beattie

Will the changes that are coming down the line from Westminster with the GDPR and so on impact on the sharing of the child’s plan?

Donna McEwan

I will be perfectly honest. I have not explored the GDPR at this point, as I have been focusing on the Children and Young People (Scotland) Act 2014 and the bill. I would have to go away and look at the GDPR and consider it further.

Ben Farrugia

At CELCIS, we welcome the added obligations under the GDPR. It is going to require more process and policy in a number of organisations. You have heard from the police and other organisations that they are going to have to think through what it means for them and maybe increase what they do or change the way they do things. Given that we are talking about sensitive personal information, that is entirely appropriate.

The GDPR builds on what the Data Protection Act 1998 laid out for the United Kingdom. Our focus at CELCIS is on supporting our organisations to introduce the necessary mechanisms to meet the GDPR requirements in a proportionate way.

Donna McEwan

Sorry—may I come back in? I have heard about the GDPR this morning and while listening to previous committee meetings, and the notion of consent—and, within that, explicit consent—is important. Particularly when we are talking about lower-level concerns that do not require statutory intervention, that consent, the child’s voice, their rights and the family’s rights are absolutely crucial. If the GDPR is taking that forward, that is a positive step and one that is absolutely in line with the intentions of GIRFEC.

Johann Lamont

In a scenario in which a young person is being picked up by the police because of low-level stuff and there is a bit of concern about them, the proposed approach would prevent the police from speaking to guidance staff and saying, “There may be an issue here. Can we bring the family in?” How does consent apply when the police are just seeing a bit of that behaviour and early intervention could be helpful, with the police working with the housing department or the school to speak to the family? You have said that consent would be required in that situation.

I suppose that what I am wrestling with is this: I get the need to protect young people and not to share information inappropriately, but I wonder whether what is proposed would inhibit low-level early intervention, whereby people can say, “There are signs of stuff coming up here. Maybe we need to speak to somebody.”

Donna McEwan

I recognise that concern, but a balance has to be struck. After all, we have to recognise that parents, too, have a role to play and a responsibility to support their children. If a child has been involved or had contact with the police, we would expect the police, in the first instance, to speak to the parent, carer or guardian to ensure that they take appropriate action to support their child.

Going back to the early and effective intervention process that I mentioned earlier, we found that, after the police had had contact with a child, had spoken to the child and their parents and had advised on the EEI process and the sharing of information, parents were quite often happy for that information to be shared and that response to be given. However, in cases in which there were no other concerns and the parent had dealt appropriately with the incident in which the child had been involved, no further action was required. The approach recognised the parents’ choice to engage in the process and the actions that they took. There were other circumstances in which support and interventions were provided, there was engagement with and consent from the parents, which the police gathered at the first contact, and then things were taken forward. The bill is making us explore in more detail how we get consent, what the full meaning of explicit consent is and how we ensure that people understand that.

Johann Lamont

A young person can be a bit troubled. Something might happen in the community and the school might, if asked, say, “Well, yeah, something is happening here.” It might not be sounding huge alarm bells, but it might think that a conversation needs to be had. Do you think that the bill makes such conversations more or less likely? I am not talking about speaking to the parents, because that would happen anyway, but it might well be that, instead of this being just one incident, a pattern of behaviour is developing and people are not picking up the clues. The concern that I want you to allay is the concern that the bill will inhibit the normal approach of people having a word with a guidance teacher or whomever to find out whether the same thing is happening at school, which might also inform the conversation that is had with the family.

Ben Farrugia

You have framed your question in terms of whether the bill would inhibit or encourage that kind of information sharing. I think that it would provide encouragement on that side of things, but the reason why the code of practice is so important is that it would encourage things to be done in an appropriate and legal way. Some of the concerns that, in the end, the Supreme Court dealt with related to previous versions of the duties putting at risk certain other rights of children and their families. In this context, I think that the bill is encouraging professionals to think about when it is appropriate to reach out to other professionals and, most important, to families and others.

The Convener

I will move on to Daniel Johnson.

Daniel Johnson

First, I want to ask a bald, blunt question. Given that the bill does not change what can be shared but, instead, obligates practitioners to consider sharing, do you think that it helps, hinders or makes no difference to practice?

Ben Farrugia

The discussion that we are sitting here having, the fact that the bill is generating a necessary, if at times difficult, debate and the opportunity that the code of practice and subsequent guidance will give us are essential to our moving forward and creating and clarifying what I have referred to as an information-sharing culture that is positive and which secures the best outcomes for children. An analysis might find that the existing legislative framework is robust enough and sufficient for this work to continue—which is what I think was implied in your question—but, as far as the Scottish context is concerned, the bill puts extra emphasis on GIRFEC and on encouraging professionals to think about focusing on and securing the best outcome for the child. On that basis, I welcome it.

Donna McEwan

As I have said, it is difficult for practitioners to take everything into account. As well as the bill, we have the Children and Young People (Scotland) Act 2014, the Human Rights Act 1998 and schedules 2 and 3 to the Data Protection Act 1998, and, as others have pointed out, the GDPR is about to come in. To be perfectly honest, my own head is confused, and I have had time to read through the material.

It is not an easy decision to make. That is why the emphasis is on the code of practice. It is not that the bill should not go through, but the code of practice and any additional guidance will make it applicable and enable its implementation in the real world.

11:45

Teresa Medhurst

I agree. I listened in to some of the earlier comments from practitioners. The bill is welcome. It strengthens the provisions that we already have and will provide more clarity. That will be positive and improve outcomes for young people.

Daniel Johnson

I think that you are all saying that it is useful to have a discussion and debate about what good practice looks like. Do we need legislation to facilitate that or should it be policy led? Could we not do it by encouraging better practice and policy rather than by introducing legislation?

Ben Farrugia

At CELCIS, we submitted a response that articulated our feeling that the current legislative framework would probably be sufficient, which is reflected in other responses. However, we have concluded that the bill can make a contribution to continuing to build the appropriate, positive information sharing that we need in Scotland within the boundaries of the Data Protection Act 1998 and the new directives from the European Union.

Daniel Johnson

I am slightly confused by your response because, in the second paragraph of your written submission, you say:

“Unfortunately the Bill, and more importantly the draft Code of Practice, do not achieve”

clarification of the complex issues on information sharing. You also say that that lack of clarity is

“putting at risk the … wider GIRFEC agenda.”

Are you saying that you have changed your mind?

Ben Farrugia

Are you asking me about the bill?

Daniel Johnson

Yes.

Ben Farrugia

That is very much about the code of practice. We were not, and continue not to be, entirely happy with the language that was used, as you have heard from a range of witnesses. However, having followed the process that you are going through, I understand that concessions have already been made. As we heard this morning, some organisations are already involved in redrafting the code of practice and thinking about what goes beyond it. When we wrote the submission, we thought that the code of practice would be the entirety of the guidance that would be available to people on information sharing. We now understand that that will not be the case.

Daniel Johnson

Given the importance of the code of practice, not just for the practicalities of making the bill work but for compliance with all the other legislation that Donna McEwan just outlined, should its status within the bill be elevated? Rather than it just being a creature of ministers, should it be subjected to wider parliamentary scrutiny because of its centrality to making the bill work practically and legally?

Ben Farrugia

Can I clarify the question? Are you asking whether the core elements of the code of practice should be incorporated into the law?

Daniel Johnson

Yes, and be subject to parliamentary scrutiny.

Ben Farrugia

I will have to take guidance from you on what the 40 days of what I interpreted as parliamentary scrutiny looks like. I understood that there was already a requirement for the Scottish Government to lay the code of practice before the Parliament for 40 days. I do not know what process is then undertaken.

Daniel Johnson

It is then subject to parliamentary approval.

Ben Farrugia

Okay—so it is just for your comment and feedback.

It is important that the code gets proper scrutiny, but I do not have a firm view about whether it needs to be scrutinised at the same level of detail as the bill. A range of organisations are already engaging actively with the Scottish Government, through the bill process and other processes, to try to ensure that the code that the Scottish Government publishes is robust. Over the past four years, we have seen that a range of organisations take information sharing extremely seriously and are willing to go to the furthest lengths possible to ensure that children’s rights and families’ rights are maintained. I am working on the basis that that scrutiny will continue to be applied to the next stages.

Ruth Maguire

Good morning. Thank you for coming. I appreciate the evidence that you have given so far. It is always a bit challenging coming in at the end, because we have covered so much ground.

Ben Farrugia mentioned a culture of information sharing. I think that we all agree that effective and proportionate information sharing is important in improving outcomes for our young people and children. What further progress do we have to make in that regard? The crucial question is, how do we best create confidence among practitioners to enable them to share information better in order to improve outcomes for looked-after children and young people in the criminal justice system?

Donna McEwan

Looked-after and accommodated children are not my area of expertise; Ben Farrugia will be able to answer that specific question.

In the main, information sharing in respect of young people who are already involved in the criminal justice system is good. If a child has appeared in court and been found guilty and a criminal justice social work report has been requested or a referral to the Scottish Children’s Reporter Administration has been made or a children’s hearing has been convened on offence grounds, there are duties on practitioners to share information. In those situations, as has been said, information sharing is good.

Again, it comes down to relationships with individuals. Practitioners need to be clear about the information that is to be shared and with whom it will be shared. As far as possible, they must get the person’s consent and ensure that they understand fully who will know what as well as what people are not going to know, which is also important.

At the statutory level, practitioners are quite confident. It is in non-statutory situations, where there is no duty to share information, that there is an issue. We should give clear case examples, because we know from speaking to practitioners that they value such examples. We should not give them a tick-box exercise—instead, we should present different ideas so that they can identify where their own practice sits. We need to be clear about the role and importance of explicit consent in sharing information at the non-statutory, non-duty level of information sharing.

Teresa Medhurst

For us, a good structure is already in place. However, we need more clarity around pathways and a consistency of approach, which can only lend confidence to young people not only when they engage with the child’s plan but while they are in custody.

Ben Farrugia

I am smiling because that is what we do at CELCIS day to day. We try to support organisations to move to the new culture or to sustain the great culture that they already have.

What I took from Ruth Maguire’s question is, what more do we need to do to learn from those places that are sharing information well? In our experience, the areas that do it well—whether they are geographical or organisational—are those that attend to different aspects. They look at structure. Are they structured well and do they have in place proper processes for supervision of and support for professionals in relation to information sharing and a wider range of practice? Do they have good systems for data storage and recording to meet their requirements, which will now be enhanced under the new European Union directives? Do they concentrate on ensuring that their professionals can build positive relationships with families and children, as has been mentioned? I think that that would be true of the adult sector, too.

A lot of the questions that we are rightly discussing fade away where there is good trust, where there are good relationships between professionals, and where families and children understand that information is being stored and shared for their benefit rather than simply for the benefit of services. If we can create systems in each of our sectors—education, social work and health—that operate on that model, we will go a long way towards moving through some of the concerns.

The Convener

That is the end of the question session. I thank the panel members for their time this morning and for answering all our questions. That concludes the public part of the meeting.

Sixth meeting transcript

The Convener (James Dornan)

Good morning and welcome to the 27th meeting in 2017 of the Education and Skills Committee. I remind everyone to turn their mobile phones and other such devices to silent for the duration of the meeting.

Our first item is two panels of evidence on the Children and Young People (Information Sharing) (Scotland) Bill. This is the second-last evidence-taking session on the bill. Next week, we will hear from the Deputy First Minister and Cabinet Secretary for Education and Skills.

I welcome to today’s meeting Sally-Ann Kelly, chief executive of Aberlour Child Care Trust; Sheila Gordon, director of children and family services, Crossreach; and Maggie Mellon, from the no to named persons campaign. All discussions take place through the convener, so if you would like to respond to any question please indicate to me and I will call you to speak. I remind members that supplementary questions should lead on from the question that is being pursued.

Gillian Martin (Aberdeenshire East) (SNP)

I would like to ask about the code of practice, and my question is really for Aberlour and Crossreach, who would use such a code. We are giving everyone who might use the legislation, in whatever form it eventually takes, the opportunity to tell us what you are looking for in the code of practice.

Sally-Ann Kelly (Aberlour Child Care Trust)

Although I am the chief executive of Aberlour Child Care Trust, I am also here representing a coalition of seven charities that produced written evidence for the committee. As we state in our written submission, our view on the code of practice is that, in its current state, the wording is overly complex and legalistic. The committee has heard the same thing from other witnesses.

Given the complexities of some of the considerations around information sharing, which we acknowledge, if there is a requirement for a code of practice, it is important that we are clear about who the code of practice is for, what its purpose is and therefore how it should read. Our view is that it should be supported by statutory guidance and should not stand alone. That statutory guidance should be fully conversant with the law, but should also be produced and presented to practitioners in its fullest form so that they can exercise their professional judgment in a sound way.

Maggie Mellon (No to Named Persons Campaign)

I agree with Sally-Ann Kelly that any code of practice should be on a statutory footing. The definition of wellbeing must be crystal clear. One of the key points in the Supreme Court ruling was that there was no definition of wellbeing and that the eight SHANARRI indicators—safe, healthy, achieving, nurtured, active, respected, responsible and included—are very vague and subjective. The Faculty of Advocates pointed to the need for any code of practice or guidance to be part of the legislation. Given the history of the legislation, it is important that what is voted on is crystal clear and compliant with the law.

This stack of paper that I am holding up is the legislation that any code of practice or guidance would need to cover—it is what any practitioner would need to refer to in making their judgment. When you ask that question, you are opening up a huge subject and a significant area of concern.

Sheila Gordon (Crossreach)

I agree with Sally-Ann Kelly’s comments about the need for statutory guidance to sit alongside the code of practice. That would be very helpful. It can be really challenging for people in the third sector to make decisions when they are slightly removed from other services—universal services usually operate in quite an integrated and joined-up framework. It is therefore of more importance that we have very clear guidance.

The code of practice must be rights led from the start. I feel that there is a gap in the way in which rights are reflected, by which I mean the rights of the child as well as the rights of the family. Addressing that would also be beneficial.

Gillian Martin

This is a forum in which you can feed into what the code of practice might be, but are you going to engage with the Government on what you see the code of practice looking like?

Sally-Ann Kelly

It is my understanding that we will be engaged in that process. We have had on-going dialogue with the bill team and the Government in relation to how the bill will be taken forward, and we have been given assurances that we will be involved in that.

Gillian Martin

Is it the same for you, Ms Gordon?

Sheila Gordon

Yes, it is the same for us.

Oliver Mundell (Dumfriesshire) (Con)

I have two questions, the first of which picks up on the comments that have been made about the current draft code of practice being overly legalistic. Is it possible to have guidance that meets the requirements of practitioners and the requirements that have been set out by the Supreme Court?

Sheila Gordon

I think that the guidance can do that. We have examples of clear existing guidance—for example, on the Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007—that would tick all the boxes that you have mentioned.

Sally-Ann Kelly

Ultimately, it is a matter for Parliament, but I suggest that there is good practice that you could lean on to inform your view on the guidance.

Oliver Mundell

That leads me to my second question, which is on parliamentary scrutiny. One of my big concerns—this has also come out in a lot of the evidence that the committee has heard so far—is that there is no mechanism in the bill to allow Parliament to actively scrutinise and vote on the final code of practice. Given how central the code of practice is to making the policy and the legislation work, should Parliament have a say in or a vote on the contents of the code of practice?

Sally-Ann Kelly

That is a parliamentary decision. I do not want to comment on that, as it is a matter for Parliament.

Maggie Mellon

I would say that Parliament must absolutely have a vote on the code of practice. The difficulty with discussing the code of practice before we discuss the bill is that the code of practice will not be any good unless the bill is right. At the moment, the bill does not answer the criticisms that were made by the Supreme Court, because it contains no central definition of wellbeing. There are a range of problems with the bill as drafted, but that is a central one. Unless you get the bill right, the code of practice is, in some ways, a secondary question.

I ask that attention be given to what is in the bill and whether it addresses the Supreme Court’s criticisms. We need to get it right this time, because nobody wants the matter to have to go back to the Supreme Court. The Scottish Parliament has the powers to get it right, and I think that it is essential that the Parliament has the chance to vote on any guidance that accompanies the bill. You should take the advice that you have been given by the Faculty of Advocates and the Law Society of Scotland.

Daniel Johnson (Edinburgh Southern) (Lab)

I seek some clarification. Both Sally-Ann Kelly and Maggie Mellon have said that the code of practice should be placed on a statutory footing. Can you explain precisely what you mean? That could mean different things to different people.

Sally-Ann Kelly

My experience of working with new legislation from the Parliament that impacts on practice is that statutory guidance will be attached to it. The appearance of the code of practice might have confused the issue of statutory guidance. There is a question about whether the code stands instead of or together with the guidance, which is a matter for the Parliament to consider. In my view, there should be statutory guidance as a minimum, and that statutory guidance must be detailed and cover the whole of parts 4 and 5 of the Children and Young People (Scotland) Act 2014, not just the information-sharing part. The guidance must embrace the named person service and what might happen in practice, including information sharing, but it should not stay silent on the child’s plan part of the act, which is one of the essential building blocks of getting it right for every child.

Daniel Johnson

Is that about detail or is it about the status of the guidance?

Sally-Ann Kelly

It is about both.

Ruth Maguire (Cunninghame South) (SNP)

We have heard from previous witnesses about wellbeing and wellbeing indicators being helpful in understanding individual children’s needs and also that, if those things were too rigid, that would impede good practice when working with children and young people. As the indicators stand, are they helpful? If not, what would you have in their place?

Sally-Ann Kelly

Our view is that the wellbeing indicators are helpful. They offer a framework, although probably not as detailed a framework as we would want at this stage. That is certainly something that we need to consider in relation to any statutory guidance.

Parliament needs to consider the definition of wellbeing and whether too stringent or too narrow a definition of wellbeing could be counterproductive in terms of allowing professionals to exercise their professional judgment. Parliament also needs to consider how we could use the existing SHANARRI indicators in a more proactive way to support that professional judgment but give more direction than is currently available to practitioners.

Maggie Mellon

I am a social worker by profession and I still practise. The threshold of significant harm is really important, as it assures families that there will not be interference in their family life on a basis that is less than that their child faces significant harm. When I say “interference”, I do not mean when a family asks for help and gets the help that they want—that is not interference. However, the idea of somebody else making a judgment about whether there needs to be compulsory interference in how parents are bringing up their children or the conditions of that is really quite dangerous. It damages trust between professionals—

The Convener

Ms Mellon, your opinion on the named person scheme is well known, and clearly the title of your organisation suggests that you do not—

Maggie Mellon

I am trying to answer the question about the wellbeing indicators—

The Convener

If you could get to your point about wellbeing, that would be good.

Maggie Mellon

My position might be well known, but I would like to put before the committee the particular dangers of using wellbeing—

Ruth Maguire

Sorry to interrupt, but we are not discussing whether all that we aspire to is an intervention when there is significant harm; we have established that we want to support children and to help them before there is significant harm. Apologies for interrupting, but you are not actually answering my question.

Maggie Mellon

I was trying to answer by saying that compulsion on the basis of wellbeing is not right.

The Government has often said that parents asked for the named person scheme. However, although parents of children with special needs asked to be offered help when they needed it, that is not what the legislation says. That is the fundamental problem with it. Asking for compulsory intervention on the basis of subjective indicators and requiring professionals to interfere is not helpful and not—

The Convener

Can we just stick to the point? When you are asked a question, can you try to stick to the point of the question, please?

Maggie Mellon

I apologise.

Clare Haughey (Rutherglen) (SNP)

On the back of that, I have a question for Sally-Ann Kelly and Sheila Gordon. Given the organisations that you represent, do you recognise compulsory interference as being part of the named person service? I come from a nursing background and have worked closely with child and family social workers, and that is certainly not my understanding of the named person service.

Sally-Ann Kelly

We need to just calmly return to the first principles of part 4 of the 2014 act. Part 4 is about early intervention and supporting families early enough at the time that they need it. For the vast majority of families, that happens on an informed consent basis. Part 4 of the act is about looking at situations where there may not be informed consent for a variety of reasons.

Potentially, it offers the opportunity to share the information in a much clearer context in the early intervention stage compared with what happened previously. There is no dispute in our organisations’ minds about the thresholds around significant harm and welfare concerns.

Child protection practice should not change as a result of the bill. It is for early intervention. I would not use the term “compulsory interference” when talking about the named person service, because we work with families primarily on the basis of informed consent and only in very few circumstances do we have to go beyond that. If there is not explicit consent from the parent, the named person, and those referring information to the named person, would need to use their professional judgment in considering whether there is good enough reason to do that.

10:15

Sheila Gordon

I agree with that in principle, but there is still a challenge. Although we fully understand the wellbeing indicators, which are now used widely in practice, the issue is cases in which there are concerns for the wellbeing that are not necessarily safety or child protection concerns. For workers, particularly in the third sector, understanding that threshold is the biggest challenge. It is not an easy problem to solve. There is not quite enough clarity on that. There is a duty to consider wellbeing, but where is the framework that the person would operate in for that? It would be helpful if that framework was teased out in more detail.

The Convener

Would that be in the statutory guidance?

Sheila Gordon

Possibly, yes.

Liz Smith (Mid Scotland and Fife) (Con)

The committee faces a considerable dilemma, irrespective of our views on the named person policy. Many of the witnesses, several of whom support the policy in principle, feel, just as you have intimated, very uncomfortable with the code of practice, although it is only illustrative. They feel that it does not give them sufficient confidence and legal backing. That is set against the fact that the Deputy First Minister said strongly to the Delegated Powers and Law Reform Committee:

“The code of practice will be obligatory and binding on any individual who exercises the responsibilities.”—[Official Report, Delegated Powers and Law Reform Committee, 19 September 2017; c 4.]

In other words, as several witnesses told us, the code of practice is crucial when it comes to people recognising their responsibilities.

The committee has a duty to scrutinise the matter and then take it to the full Parliament. Do the witnesses believe that having an illustrative code, as we do currently, enables us to do our job of scrutiny effectively enough to satisfy the practitioners who have to operate the policy?

Sally-Ann Kelly

My understanding is that there have been significant comments on the illustrative code. I think that there is an understanding that it needs to shift significantly.

The parliamentary scrutiny is a matter for Parliament. Our organisations would be pleased to be involved in developing the statutory guidance and amending the code of practice, if that happens, to ensure that both documents, if there are going to be two, are fit for purpose. You may also choose to scrutinise the code. That is your choice.

Liz Smith

I will pick up on that point, because it is central and relates to wellbeing. We have been told that the SHANARRI indices are helpful but do not extend much further than that. Wellbeing is not defined in law, and therefore the concept can be interpreted in different ways. If it was clearly defined, would some of the problems that we face diminish?

Sheila Gordon

It is a challenge to define wellbeing. Perhaps we should reverse that and ask whether we can define circumstances in which we would have concerns about wellbeing or can have a framework for that. That might be a way of considering the question.

Liz Smith

Do you accept what Ms Mellon said regarding the threshold? It is very clear if a child is at significant risk of harm and there is a real welfare issue, but do you accept that the threshold for assisting a child, or making an intervention, is not clear enough, and that that is creating doubt in the mind of some practitioners about when they should intervene and when they should make that judgment?

Sally-Ann Kelly

The bill will potentially place new duties on existing members of the workforce. I would not want to be disparaging in any way towards those professionals, but those responsibilities are significant, so we certainly need to offer them comprehensive training on their duties. That needs to include professionals who make referrals to the named-person service, as it is about not just statutory professionals and the named person but the whole system that supports the child.

In that training, we might need to look at a framework for wellbeing. I agree with Sheila Gordon that it would be really difficult to find a single definition of wellbeing, given the number of areas of a child’s life that that impacts upon. The SHANARRI indicators could be used to develop a framework for wellbeing to take that to the next level, but arriving at a single definition would be difficult. Further, doing so could come with the unintended consequence of restricting practitioners’ professional judgment.

Maggie Mellon

Finding a definition of wellbeing is indeed a huge problem, and no definition has been brought forward. There is a difficulty when wellbeing is defined so broadly. I am not at all averse to Parliament and Government being committed to improving the wellbeing of its citizens—that is the whole purpose of Parliament and Government. The issue is about making a definition in law that requires people to actually act.

One person’s idea of what is good for children is quite different from another’s, unless we are talking about what everybody would agree is obviously harm. The danger when the definition is so broad and subjective is that we might get risk-averse practice among practitioners, who think, “I don’t want to be the one who doesn’t pass on this concern and share this.” That leads to parents, children and young people feeling worried about a lack of confidentiality and about trust. For example, people want to be able to trust their health visitor when they come round and might confide in them about financial or marital difficulties or feelings of depression. People do not want that information to go all round the system unless there is some evidence and it is not just on the basis of a concern about wellbeing.

We now have so many children in Scotland who are suffering from poverty. When named persons are asked to help them, what help have they got to give? Can they give a child a meal, clothes or shoes? I see committee members looking perplexed, but I cannot help but see wellbeing as part of social justice.

Liz Smith

At the start of the meeting, Ms Mellon, you held up a wad of paper that had in it, in your opinion, the legal information that practitioners would have to have good knowledge of to carry out their duties effectively. I have a question for your two colleagues. Would the legislation be binding with regard to the knowledge that practitioners would be required to have? Ms Kelly, you mentioned training. Do you feel that practitioners are adequately trained to know those things?

Sally-Ann Kelly

I am not sure what Maggie Mellon has in that pile. I would say that, in any professional context, some parts of legislation will be more significant and relevant to the task that a person does than others. The training would have to address that.

As I said, if we are to introduce this legislation, we will need to put in place comprehensive training. For practitioners, that training would include the legal context, but it would need to be proportionate. It should not cover every dot and comma of every act but just the bits that refer directly to their role.

The Convener

Tavish Scott wants to come in briefly.

Tavish Scott (Shetland Islands) (LD)

Sally-Ann Kelly rightly said that it was for Parliament to decide how to scrutinise draft or proposed legislation. Can I take it that you, as a practitioner and professional in the field, would like the code of practice to be published, clear, definable and easily understood by people in your professional world?

Sally-Ann Kelly

Yes.

Tavish Scott

Would the statutory guidance that you have described be in addition to the code of practice? Is the idea that you are putting forward this morning that it would be helpful in understanding the code of practice?

Sally-Ann Kelly

Yes.

Tavish Scott

When you said that it should be statutory—

Sally-Ann Kelly

My view is that if Parliament decides that there is a need for a specific code of practice, there needs to be statutory guidance that sits alongside it that can be easily interpreted by professionals.

Tavish Scott

That is fair. When you were describing that earlier, I wondered whether you meant, when you said it should be statutory guidance, that it should all be laid out in the bill, line by line—it might or might not be a document of some length—which would by definition make it law, if the Parliament passes the bill. Did you, on the other hand, mean that the Government would propose legislation that would say that there will be statutory guidance, after which that statutory guidance would be issued and discussed?

Sally-Ann Kelly

You will need to forgive my lack of legal expertise—

Tavish Scott

It is not really a legal question, in fairness. I do not want to tie you in legal knots.

Sally-Ann Kelly

It is one for the lawyers to decide, but—

Tavish Scott

I do not think that it is, actually. I think that it is for Parliament to decide.

Sally-Ann Kelly

Or, it is for Parliament to decide—

Tavish Scott

My point is that if there is statutory guidance saying, “You, Sally-Ann Kelly, will do the following,” and it is laid down paragraph by paragraph—you probably deal with that all the time in your professional life—as a statute in law, it is by definition the law of the land, so if you were to disobey it you would be in front of the sheriff. Do you want that, or do you want statutory guidance that accompanies a code of practice that says that there shall be guidance—that would be laid down in law—and beneath that, there would be a document from the Government providing its guidance on this subject?

Sally-Ann Kelly

I am speaking on my own behalf here, because we have not commented on that, in the coalition. My preferred option would be the second of the two.

Tavish Scott

Thank you. I am sorry to tie you up in knots.

Sally-Ann Kelly

That is okay.

Johann Lamont (Glasgow) (Lab)

We have talked about wellbeing and the threshold for child protection being two very different things. Is not it the case that the named person legislation arose from concern about the inability of the system to spot child protection issues early, and about young people falling through the system because no one person was responsible? It feels as though that has shifted and that people are saying, “Everybody knows about child protection—that is clear,” although the evidence that we hear in our communities and the tragic cases that we know about suggest that that is not true. Are we separating off something that was supposed to help us to spot early issues that could develop into child protection issues?

Sally-Ann Kelly

My earlier comments were about the law as it currently exists in relation to information sharing for child protection; I think that that law is clear. I did not say that it is followed in all cases in which that is required. There are still issues for us in terms of consistency of practice, in that regard.

On the origins of the named person provision, I accept that that came from failures to share information adequately that resulted in specific issues relating to serious harm to children, which is regrettable, but what we are discussing now is about early intervention.

I will also say that one of the things that we need to accept as a country, if we are truly committed to giving the earliest help to families, is that we need a cultural shift in how services intervene or work alongside families to ensure that they feel confident about seeking that early help. As Maggie Mellon said, we need to be clear about the purpose of information sharing. If information sharing in the early-intervention context is about trying to get extra support to families, that extra support needs to be available locally. One of the things that our coalition is clear about is that there is no consistency of provision in the country; we need to think about that, if we are to pass legislation such as the bill. We are not separating the issues out. What I am trying to do is be clear that that part of the bill should not directly impact on people’s perceptions of when and whether they can share information in a child protection context, because that has not changed.

10:30

Maggie Mellon

I totally agree that there is some clarity around information sharing for child protection purposes. There have sometimes been problems when information that has been shared has not been acted on, but we should not make the mistake of saying that we must share information about absolutely everything and everybody.

Last week, we were told that there are 815,000 people on the vulnerable persons database. That makes us wonder how long it will be before there are fewer people not on a database than are on one. We have 815,000 people on that database because of people thinking that we must record information on people and put down something about their vulnerability or need. We also have more than a million people with criminal records. We are talking about a third of the population. That is needle-in-a-haystack territory if our concern is about children who might slip through the net and not be picked up and helped.

The committee needs to examine that concern about information sharing. It is not about a wish not to help people. As Sally-Ann Kelly said, it is necessary to have help available, and it should be available to parents and children across the country when they need it. However, that is not what is happening. What is happening is that records are being built up and people are sharing information, I think in quite a risk-averse way, without knowing what they can actually do to help.

An act saying that children and families can ask for help, and that it is the duty of services to try to provide it in order to help them to have good wellbeing, would be quite different from the bill that we have been presented with. The danger of sharing information indiscriminately or using a lower threshold is that we must deal with a lot of people, so professionals actually would not be able to discriminate between children who are seriously at risk and children who have a need.

The Convener

However, “indiscriminately” is not how information would be shared.

Maggie Mellon

Well, that is a matter of opinion.

The Convener

“Indiscriminately” is a pejorative word that suggests that people will just be passing on information willy-nilly. That is not the point of the bill.

Maggie Mellon

I used the word “indiscriminately” in the sense of not defining the grounds for sharing the information. For instance, what is your definition of “wellbeing”?

The Convener

Discrimination will be used about what information is shared. That is the whole point of the bill.

Johann Lamont

Ms Mellon said that there is an issue about defensive practice, and the implication was that people would share a lot of information. We have heard a lot about defensive practice, but my reading of that was actually the opposite—that people would be ultra-cautious. My concern would be that things that people might share now will not be shared in the future. Do the other two panel members have a view on that?

I think that the fear that is being expressed to the committee is that something that was well-intentioned might in practice make things worse. We really need to be reassured about this, because we might now be in a position where even those who were most committed to the approach are ending up in a place where they will not be able to take it. There is clarity about a duty to share information, but a duty to consider whether to share information is slightly different. Do you have any comments to make on defensive practice?

Sally-Ann Kelly

One of our concerns is the uncertainty that has existed since the Supreme Court ruling. We have examples at Aberlour of people being unsure or unclear about whether they can share information. I am sure that other charities have such examples. There might well be concerns out there in relation to understanding when it is okay to share information.

The coalition has argued for comprehensive training because it is really important that that situation does not prevail and that children and families feel properly supported. In the circumstances, proper training and statutory guidance across the wellbeing framework would certainly help.

We have also argued for a nationwide campaign to clarify what the named person service is and what it is not and, within that, for clarity about the circumstances in which families can expect their information to be shared and what their rights are in relation to the named person service.

What adds to the confusion for practitioners is a wider confusion in the public about the status of the named person, what the scheme is and what it means for them. Many of our practitioners are parents, too, so there needs to be a clear statement and response from the Government to clarify that.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

The concept of wellbeing appears to be an important potential gateway to the sharing of information. Given the question of consent, how do you envisage information sharing working with United Kingdom and European data protection law, particularly in the light of the incoming general data protection regulation?

Maggie Mellon

That is the million-dollar question. We have not talked a lot about consent. The Data Protection Act 1998 requires consent for the sharing of information—and informed consent, at that. The GDPR will make that even more stringent: it says that just having consent will not be sufficient. We will have to be sure that it is informed consent—that the people who are consenting understand the consequences of their doing so. The question is important.

I understand that the Data Protection Act 1998, or the guidance under it, will be amended by the GDPR. The act is clear, which is one of the reasons why the Supreme Court struck down the named person provisions. The bill does not address that. All that it does is say that the professionals themselves have to work out all the problems that the Supreme Court pointed to. It tells them to keep within the law, but to share information. It tells them that they might be blamed if they do not share information, but it does not give them any clarity. However, the Data Protection Act 1998 gives them clarity. It would be important for the understanding about consent to be in the guidance, regulations or the bill.

Sally-Ann Kelly

I have already explained to the committee that I am not a legal expert. The legal experts are in debate about that point. I would be reluctant to comment much on the legislation prior to its being enacted, other than to say that regardless of what we do in the law, we need to achieve consistency in what is offered to families. We need to ensure that there are no unintended consequences of legislation in Scotland on which the GDPR might impact.

Sheila Gordon

That is a challenge. We do not have the answers yet, but we have to remember that, for the majority of the time and in the majority of circumstances, we are working with active consent from families. We work alongside parents and children: they know whom we are talking to and what is happening. Therefore, the number of situations in which there would be concerns is very small. We always have to remind ourselves of that. If children’s rights and families’ rights are addressed in the legislation, that gives us a way to deal with the matter.

Colin Beattie

Previous witnesses indicated that individual practitioners within the different functions are already exhibiting a degree of defensive behaviour with the GDPR coming in. How will the question of consent impact overall? We have heard again and again that the legislation has to be proportionate in terms of the individual versus the local authority, or the organisation that receives that consent. How will that work?

Sally-Ann Kelly

We need to remember that, as Sheila Gordon just said, the vast majority of families with whom we work and with whom the statutory authorities work do so co-operatively and with informed consent. We need to bear that in mind and to remember that there will be only a very small number of cases in which consent becomes a significant issue. We would do the system an injustice to suggest that the issue of consent will cause a lack of clarity across the system. The principles are about early intervention and saying “There’s potentially something here that could help your child in one circumstance or another to get help.” The vast majority of parents would accept that we need to share information as professionals in order to source that help, because parents, too, want to improve their children’s lives. In the vast majority of cases, parents will see it as a good thing.

Colin Beattie

Given what you have said, are we making too much of the issues around consent?

Sally-Ann Kelly

I would not say that we are making too much of consent. It relates to a Supreme Court judgment and is an important thing that we need to sort out. However, we need to understand the broader context of when we will require to apply it.

Colin Beattie

I was referring to what appears to be coming as a result of the GDPR and the impact that it will have on consent.

Sally-Ann Kelly

I do not want to comment on that.

Maggie Mellon

It is absolutely true that many families who approach services for help give their consent to receiving that help and to any sharing of information, but they might not realise the consequences of that. I gave the example earlier of a person talking to their health visitor, who might say “I’ll make inquiries about getting some financial help for you”, or whatever. However, has the person involved given informed consent to sharing of their information with a wide range of people? In a small community, that could mean that not only a teacher, for example, but everybody in the community might know information that might be very sensitive.

Confidentiality is the absolute guarantee of trust between professionals and the people whom we serve. People have to be sure about confidentiality, information not being shared without their knowledge or permission—which we know has happened—and informed consent, with the GDPR. People have been giving consent to share information without realising—neither have the practitioners—that it can last for years and years throughout a child’s life, to the extent that when they apply to do a nursing course or a care course, for example, there could be soft information about them that says that they behaved in an inappropriate way when they were eight, or that they were thought to have behaved in that way. At the moment, such information follows children through their lives.

We are in danger of creating huge databases that people do not know they are on, with information about them following them through their lives. That is what the GDPR and informed consent is meant to be about. We all need to take very seriously the question of what happens when we record information. Where does it go? Who owns it? Can it be removed? The problem is that if that information protection is breached, people do not have the money to go to court for redress. Once information is out there, we cannot have redress, because our privacy has been breached. We have to ensure that we do not do any harm through the intention of doing good.

Daniel Johnson

I want to follow up on something that Sally-Ann Kelly said. You said that in the majority of cases that you work on there is consent, and that it is about early intervention to ensure wellbeing. However, given the Data Protection Act 1998, is it ever possible to share information without consent on the basis of wellbeing alone if the child protection criteria have not been met?

Sally-Ann Kelly

Sharing information without some kind of consent would be complicated and difficult to do. On what Maggie Mellon just said, we need to give credit to the multitude of professionals in Scotland who already work with a level of complexity.

Maggie Mellon mentioned the situation in small communities; I have lived and worked in such communities. People who are employed by statutory authorities and the third sector broadly understand their responsibilities in relation to data protection. It would be unfair to suggest that there is a party of information sharing going on in communities, because that is simply not what I see in practice.

10:45

The Convener

We are about to hear from an existing practitioner.

Clare Haughey

Thank you, convener. I was about to make the very point that has just been made: professionals and third sector organisations are bound by professional guidelines on information sharing, and there is no huge database somewhere with everyone’s data on it. I am somewhat concerned that some of the information that we have heard this morning might make people concerned about approaching professionals and disclosing to them difficulties or problems that they have for fear that that information will be recorded and come back to haunt them in years to come.

Johann Lamont

I refer back to my earlier point. The challenge for us is to decide whether the bill addresses the problems that the Supreme Court identified and whether, in doing so, it makes it better or worse for delivering the policy intention. Are the problems fixable through the bill? Can the bill meet the original policy intention of the 2014 act, or is there another way to do that?

Maggie Mellon

The bill does not solve the problems that the Supreme Court identified. A bill that says that parents and children and young people should be able to approach services to get help and that services have a duty to help them would be more useful. The concept of the named person comes from mental health legislation; the patient says, “I want this person to represent and act for me and to have the information that psychiatrists and others have shared.” That is a completely different concept of a named person—the individual actively chooses the named person to act for them.

The problem that we need to address is whether the bill is about telling parents what is good for them and telling them to act in the way that we all think is good for them instead of listening to what they want. Families—children and parents—are not objects of concern; they are active in their own lives. They need to be the ones who decide to ask for the help that they want and they need to be listened to.

Johann Lamont

From your organisation’s point of view, the policy does not work, so whatever is done to fix the problems that the Supreme Court identified will not really satisfy you. That is an entirely legitimate position.

For those who argued for the named person legislation, but who have seen the problems with it and have heard the suggestion that there might be defensive practice, will the bill solve the problems that have emerged, or do we need to do something else to achieve the policy aim of protecting families and identifying early young people who might be at risk?

Sheila Gordon

I would not like to comment on the legalities of whether the bill addresses the Supreme Court’s ruling, but we are generally supportive of the bill, the GIRFEC principles and the named person policy. However, there is work to do to make sure that the policy works in practice. We have already talked about the importance of the guidance being specific and about the support that is needed for people working in universal services, the third sector and various other services across the country to allow them to understand their duties.

Johann Lamont

Do practitioners feel that they are now in a more complex place, with more complicated decisions to make as a consequence of the bill? Is there an argument for going back to first principles with regard to the purpose of the 2014 act to see whether there is another way of achieving the original policy intention, instead of managing what now feels like a very complex process, with defensive practice perhaps overlaying it?

Sheila Gordon

This is what people on the ground do on a daily basis. People who work with children have concerns for them and see their successes and achievements. People are already working on this on a day-to-day basis—we just need to get this right.

Johann Lamont

Will the bill make things more complex for the person making the decision?

Sheila Gordon

The process is already complex. I do not think that I can say that the bill will make it more so.

Sally-Ann Kelly

We were curious about that. In our submission, we ask—this was a genuine question—whether the bill meets the needs of the Supreme Court ruling. What we understand from further conversations with the bill team is that introducing the new obligation to consider sharing information is a step in the right direction. Our view is that we need to be clear even about that duty to consider. I have already talked about the need to be more specific about wellbeing, and training will help in that respect.

The issue is how we implement the named person scheme. We, too, are very supportive of it and the GIRFEC principles. None of that has changed, but we need to be confident and honest in our discussions with regard to getting the implementation right.

Johann Lamont

Do you accept that there might be unintended consequences that might mean our having to start again? This is what the committee is wrestling with. Are there any unintended consequences of moving to a duty to consider sharing information—and the requirement for people to provide evidence of how and what they had considered—given the legislation and the judgment that has to be made? Do those unintended consequences with regard to time, energy, resources and defensive practice outweigh or, indeed, overshadow the original principles of the legislation?

Sally-Ann Kelly

The coalition did not go far enough in making comments on that. If we go back to first principles on why the measure was introduced, my professional judgment is that there was not enough consistency throughout the country in the judgments that were being made about when and whether to share information. If we can come up with a piece of legislation that provides a framework for considering the circumstances in which information should be shared, and the legal framework for sharing it, we should do so because we need to have a consistent approach throughout the country. What we had historically—and, to an extent, what we still have—is inconsistency.

We also need to think not only about information sharing but about its purpose. To be frank, there is no point in sharing information if nothing positive is going to be done with it. We need the network of early intervention services to support families.

Johann Lamont

So having consistency is actually about support for families and the resources that are available rather than some theoretical argument about information sharing. It makes more of a material difference to families. After all, we all know that defensive practice happens.

Sally-Ann Kelly

The central principle is getting the right support to the child at the right time.

Ross Greer (West Scotland) (Green)

There has been a debate among people who support the principle of the named person scheme about the necessity for further legislation. Where would the lack of an information-sharing provision leave the scheme? To what extent can it function without the proposed duty to consider sharing information?

Sally-Ann Kelly

Earlier in my evidence, I alluded to the need for culture and practice shifts within the system. Such shifts will be required with or without an information-sharing component to the named person scheme, but an information-sharing component will provide an impetus to the cultural and practice shifts that we as a country need to make. I also hope that it will reorient our provision towards early intervention and prevention rather than crisis-driven services.

Maggie Mellon

On confidentiality and professional judgment, the problem with the named person provisions in the Children and Young People (Scotland) Act 2014 was that they told everybody to breach their duty of confidentiality and that they had to share information. Because it was a duty to share information and did not mention consent, it was not compliant with the Data Protection Act 1998. We now have a bill that tells people that they have a duty to share information but which puts the responsibility on practitioners to comply with a range of legislation. I can see that it gets the Government itself out of a potential problem, but it pushes the problem on to the people on the front line, and that is not helpful.

The issue is whether we go back to first principles and look at what families need. For years now, parents of children with special needs have been asking for someone in a public service to be appointed as their champion in order to help sort things out, but they have still do not have that. It might be useful to look at the named person provision in the mental health legislation, because it is voluntary and involves the parent asking someone they trust to get services co-ordinated and sorted out.

The Convener

You have made that point before. Thank you.

Sally-Ann Kelly

Given the complexities, it is important to be clear about what the bill says and what it does not say. It sets out a duty to consider whether information should be shared and allows for professional judgment to be made on and due consideration to be given to whether to share. It is not a duty to share all information automatically.

Ross Greer

I want to follow up Ms Kelly’s earlier point on the need for a public information campaign to explain what a named person is. If we cannot make progress on this legislation, is there a danger of that being perceived by the public as a defeat of the named person policy overall and of its hampering delivery?

Sally-Ann Kelly

There is certainly a danger of that. However, the implications for children and families are the important thing. As a coalition of charities, we support the named person scheme and, more important, the principles of GIRFEC. On the public information campaign, we are very clear that we need clarity in the public realm about what the named person scheme is and what it is not.

Liz Smith

You are right to seek clarification. It is our understanding that there is an obligation on institutions to make provision for named persons, but there is no obligation on families necessarily to accept the advice from named persons. Do you agree with that? If so, do you feel that the point has been spelled out well enough so that there is good public understanding?

Sally-Ann Kelly

The coalition has argued from the outset that families should have the right to some type of redress on the named person’s decisions. We would support children and families’ rights.

Liz Smith

To be clear, do you support their right not to accept the advice of a named person?

Sally-Ann Kelly

Yes. People have the right to do that, but there needs to be a proper process through which they can be supported in doing just that.

There has been no proper clarity in communicating the named person scheme to the public, and that is something that the Government needs to pay a lot of attention to following the committee’s deliberations about how these decisions should be taken forward. The Government needs to front that public information campaign.

Gillian Martin

Following on from that, do you agree that the media have a responsibility to make sure that they do not use hyperbole over this? That has affected public opinion.

Sally-Ann Kelly

I am sure that the media has responsibilities here. However, we need to accept that we have a free press and that it will give its own interpretations of stories. The most eloquent challenge would be a clear, concise and precise campaign from Government on what sections 4 and 5 of the Children and Young People (Scotland) Act 2014 are about, especially with regard to the named person.

Daniel Johnson

The joint submission from the children’s charities states that the bill does not change the legal landscape on what information can be shared. Given our discussion about thresholds, early intervention and wellbeing criteria, does the panel agree that the bill does not change what information can be shared and that that aspect will still essentially be governed by the Data Protection Act 1998 and its successors such as the GDPR?

11:00

Sally-Ann Kelly

We posed the question, because we were genuinely unclear. The bill team’s response was in relation to the introduction of the duty to consider, which changes the information sharing part of the 2014 act but not data protection legislation.

Daniel Johnson

So the bill does not change what information can be shared.

Sally-Ann Kelly

I alluded earlier to the discussion that needs to take place between the lawyers. I am no legal expert, but the lawyers need to look at information sharing and Parliament needs to listen really carefully to what they say about its implementation.

Maggie Mellon

I just want to make the point that the bill will not change the law. The Human Rights Act 1998 and the Data Protection Act 1998 will prevail and provide the framework for information sharing, so it seems a bit pointless to have a bill that just says that practitioners should have regard to the law. Given that they can share information only in accordance with those laws, I am not quite sure why the Government thinks that this bill solves a problem.

Daniel Johnson

Given that what can be shared is really determined by the Data Protection Act 1998 and its successive legislation, and that what this bill is saying is that practitioners need to consider whether to share information on the basis of wellbeing, we will have one act setting out what can be shared and another act and set of criteria asking practitioners to consider whether to share information. Does that not create a conflict or tension between the criteria that professionals are using to assess what information they may or may not share?

Maggie Mellon

Absolutely. That is the central problem.

The Convener

Please speak through the chair.

Maggie Mellon

Sorry.

Sally-Ann Kelly

Again, I am no legal expert, and I think that there are varying views on the matter. We have posed a question and have heard the bill team’s justification; it now becomes a matter for Parliament and for you with regard to the advice that you give on this very complex issue.

Daniel Johnson

Finally, and briefly, we have talked a lot about the code of practice, its legal standing and the parliamentary process. I think that this is a matter for Parliament but, from your perspective, do you think that you will be in a position to judge this legislation before you have received the final code of practice from the Government?

The Convener

We are back to where we started with the first question about the code of practice, are we not?

Sally-Ann Kelly

We have been very clear about this. In our submission, we encourage the committee to return to the broader context within which we are trying to implement information sharing. We will judge the matter not on the bill alone but in relation to everything that goes with it. The code of practice, the statutory guidance, any investment that we make in the training of the workforce and any look at how we invest in early intervention services in communities will be relevant to what the act looks like in the final analysis.

Maggie Mellon

Unless we have a clear definition of wellbeing that fits with the existing legislation, that will be the big problem with the act, and it is likely to end up back at the Supreme Court. Indeed, the fact that there was no such definition was one of the key things that were pointed out. Previously practitioners were told to share information and now they are being urged to consider sharing it, but if they do that, they have to take everything into account. As a result, the definition of wellbeing is central.

Sheila Gordon

It will be really important for the statutory guidance to be available, if the bill progresses.

Clare Haughey

I want to make a point for clarity and, in doing so, I refer members to my entry in the register of interests as a mental health nurse.

Ms Mellon made reference to the named person provision in the Mental Health (Care and Treatment) (Scotland) Act 2003, but the named person under that act is completely different. A person who has been detained under the act or for whom there is an application for detention can nominate someone to act on their behalf, but that does not apply if someone is voluntarily admitted to hospital. It is a complete misnomer to say that the two named person provisions should be conflated.

The Convener

Ms Mellon, do you want to come back on that?

Maggie Mellon

I just want to say that the issue is whether the named person is somebody who is trusted and appointed by the person. I have gone no further than that—I am simply saying that that is the other way in which the term “named person” is used and pointing to the voluntary nature of that and the fact that it is somebody whom the person trusts and who is charged with getting services for that person. What was happening before—

Clare Haughey

But that is not what the named person under the 2003 act is.

Maggie Mellon

I was pointing to it as a voluntary concept.

The Convener

Everything should come through the chair, please.

Maggie Mellon

I am sorry.

Clare Haughey

Sorry, convener.

The Convener

Okay. The points have been made. Thank you very much for that.

That brings us to the end of this evidence-taking session. I thank the witnesses very much for their attendance. We will suspend for a moment or two to allow the witnesses to leave before we move on to the second panel.

11:05 Meeting suspended.

11:09 On resuming—

The Convener

I welcome the witnesses for our second panel: Kirsten Hogg, head of policy for Barnardo’s Scotland; Alison Reid, principal solicitor at Clan Childlaw; Professor Nancy Loucks, the chief executive of Families Outside; and Eileen Prior, the chief executive of the Scottish Parent Teacher Council. I thank them for attending. As I mentioned to the first panel of witnesses, if a witness would like to respond to a question, they should indicate to me and I will call them to speak.

We will go straight to questions from members.

Daniel Johnson

I will address my question in the first instance to Alison Reid, but other witnesses may want to join in. The Clan Childlaw submission says that the bill

“does not permit any more information to be shared”.

I ask Ms Reid to clarify a point that I raised with the previous panel of witnesses: is it, or is it not, permissible to share information based on wellbeing without consent?

Alison Reid (Clan Childlaw)

The bill does not alter the circumstances in which information can lawfully be shared, so that comment is correct. Your question concerned the duty to consider sharing information. That duty does not change the threshold for sharing information. It is just about considering whether to share information rather than being about when you can share it.

The bill does not change the current legal framework, unlike the 2014 act, which did. It cannot, because it sits beside human rights law and data protection law, which it does not affect.

Daniel Johnson

Is it your opinion that, if sharing information did not meet the child protection criteria that are set out in the Data Protection Act 1998 but a professional had concerns about wellbeing, they would need to obtain consent to share that information?

Alison Reid

If we put aside the issue that the Information Commissioner’s Office raised, which was described as a little area where that might not be the case and which concerns statutory functions, a safe approach would be to consider the child protection criteria threshold unless you have consent.

Daniel Johnson

Do any of the other witnesses have a view on that?

Kirsten Hogg (Barnardo’s Scotland)

In our written submission, we questioned how much the bill develops the existing legal landscape. We were thinking about our own practitioners, who are often in receipt of information and have to consider whether to share it. From that point of view, we did not see what the bill added. However, having had conversations with the bill team about the policy intention of the duty to consider sharing information, we have thought some more—I speak here on behalf of Barnardo’s, not the rest of the coalition—about what the duty can contribute.

Although the bill does not change what information can be shared or in what circumstances it can be shared, we are supportive of the policy intention of helping to provide greater consistency throughout the country. Our experience on the ground as a national organisation is that, in areas where GIRFEC is well embedded, information sharing with and by the named person happens but, in other areas of the country, there are children and families who are not supported in the same way by the GIRFEC system.

The bill is not the only answer. There is a need for other support—which I have no doubt we will come on to talk about—around the code of practice, the statutory guidance and training. However, we are supportive of the policy intention. Therefore, although the duty to consider sharing information does not add anything to what information can be shared, it is important.

Professor Nancy Loucks (Families Outside)

We have specific questions about consent. Our submission was specific because our organisation supports children and families who are affected by imprisonment. As I said in it, the question is, whose information and whose consent do you need to get? When a parent goes to prison, is that the parent’s information or is it the child’s?

Obviously, the imprisonment of a household member is something that affects a child’s wellbeing—indeed, it is recognised as an adverse childhood experience. The question is whose consent we would need to obtain. Imprisonment is technically a matter of public record, but there will be other occasions, for example to do with a parent’s substance misuse or a parent being sectioned under the Mental Health (Care and Treatment) (Scotland) Act 2003, when there will be a question about whose information it is and whose consent we need. That raises wider questions.

11:15

Daniel Johnson

I want to follow up what Kirsten Hogg said. I completely agree that consistency is vital, but can we really have consistency if we have one set of criteria that dictates what we can share and we are asking practitioners to consider what to share on the basis of another set of criteria? I am struggling slightly with how having two sets of criteria can help with consistency.

Kirsten Hogg

I think that what we meant was that we are looking for consistent implementation of the named person approach and the information sharing aspect of it. The wellbeing criteria are subjective, and practitioners really value that. They value being able to use their professional judgment as they think about individual families and children and their different needs, so we are not looking for consistency in that regard, necessarily. We need a consistent approach, rather than consistent decisions.

Alison Reid

The difficulty is that the bill introduces a duty to consider sharing information based on wellbeing, which we think is disproportionate and unnecessary and will cause a number of difficulties.

As has been discussed, it causes difficulties because “wellbeing” is such a broad concept. Also, practitioners must already consider that in the context of child protection issues, and already do so, under their legal and professional duties. The Royal College of Nursing Scotland commented specifically on that. The RCN said that it is worried that the provisions will result in “defensive practice” and concluded that they are unnecessary.

We also think that the proposed approach causes confusion, because it creates another step in the decision-making process around wellbeing, as Daniel Johnson said, and that is not the threshold at which information is to be shared—that threshold is set in relation to data protection, human rights and confidentiality. That potentially leads us into more difficulties with being human-rights compliant.

The other issue is the purpose of the duty to consider, which is set out in the policy memorandum as being to encourage or prompt information sharing. In my view, legislation is not the way to encourage or prompt information sharing. That could well have unintended consequences, as I think that the committee’s earlier witnesses today pointed out.

We do not need further legislation. We have a legal framework within which the information sharing aspects of the bill could operate. What we do need is clear, robust and accessible national guidance that is not on a statutory footing. Such an approach would simplify all sorts of issues with which the committee has been grappling, because then there would be no need for a code of practice under new legislation.

The Convener

Ms Hogg said that what we are looking for is going on, but not consistently across the country. At the end of the day, is not the purpose of the bill to achieve consistency?

Kirsten Hogg

In our experience, there are areas in the country where the GIRFEC approach is well embedded and information sharing, with consent and in accordance with what is set out in the bill, is happening. However, although information sharing around child protection concerns and with social work is well embedded, what is newer in some areas of the country is the sharing of information among universal services for the purposes of early intervention. That is where we are looking for consistency.

Professor Loucks

Although I think that we have established that the concept of wellbeing needs to be clarified, we disagree that child protection is enough, in that there are issues that will have a dramatic impact on child wellbeing that are not necessarily child protection issues, such as the imprisonment of a parent.

I want to follow up on the point about consistency. There is concern that if we do not have clear enough guidance on what “wellbeing” is, decisions about what information should or should not be shared might be swayed by capacity and resource across different areas as much as by the impact on the child.

Daniel Johnson

Following on from that point, we have already established that the bill does not change what can be shared without consent, so I am interested to find out whether the policy could proceed without the information-sharing provisions. The point about consistency is well made, but is that not a matter of policy? What might the named person policy look like and what might it be able to do if it proceeded without the information-sharing provisions that we are considering?

Eileen Prior (Scottish Parent Teacher Council)

From way back, the Scottish Parent Teacher Council’s approach to the bill has been from the perspective of what it offers families. The case has always been put forward that the bill is about support for families rather than child protection. If it is about support for families, families’ participation and consent are a top-line requirement.

The committee heard from the previous panel that the majority of work with families is done on a co-operative basis. A member of the previous panel said that the majority of families look for support and ask for help; in other words, assistance is sought on a co-operative basis, with consent. It is only a tiny minority of families who do not take that approach, and that will be a child protection issue. We can clearly identify that. Most families who want support understand that information will need to be shared. The professionals and third sector organisations that work with them will explain that, in order to help them, they will need to speak to people. That is absolutely right, and families will almost certainly be completely happy with that.

We are getting to the nub of the issue. The bill is trying to solve a problem that does not really exist. There are children who are at risk in a small minority of families, and that is where we are struggling with the bill.

Alison Reid

Like other members of the panel, we are very supportive of GIRFEC and we can see some benefits of the named person scheme, particularly that of giving people a single point of contact. However, we have come to the view that the named person scheme could continue but without legislating on the information-sharing part of the 2014 act. We think that “wellbeing” might be an appropriate concept in informing the duties of local authorities, as is set out in the act. The difficulty that we have is with the use of “wellbeing” as part of the threshold in relation to information sharing. We think that the concept of “wellbeing” and the named person scheme could continue without legislating on information sharing.

Professor Loucks

I have concerns about whether the use of child protection criteria is enough. Eileen Prior said that a small minority of families are not happy to share information and that that is a child protection issue but, in the event of the imprisonment of a parent, that is not the case. That is not necessarily a child protection issue, but there will be a big impact on the child if that information is not shared, because there is such a stigma attached to that. It is extremely difficult to encourage parents to be willing to put themselves in that position.

Eileen Prior

I absolutely agree with that, but the reality is that the data protection legislation will require informed consent from whomever that data is about, whether it is the parent or the child. Informed consent will always be necessary.

The Convener

However, you made the point that when families who might require support do not seek it, that is clearly a child protection issue.

Eileen Prior

No. I was saying that if you look at the data, you will find that that is where the child protection issues are. Those are the families who are in crisis and whom professionals are looking at and saying, “We have to safeguard that child because there is a risk of harm.” Risk of harm is a clear measure.

Liz Smith

Ms Reid, you have said that you would not legislate or have a code of practice. When the Deputy First Minister attended the Delegated Powers and Law Reform Committee, he was very keen for the code of practice to be obligatory and very much compulsory for those who would be named persons in order to ensure that their judgment was correct. Is it Clan Childlaw’s advice that the Deputy First Minister should give that a bit of a rethink?

Alison Reid

It all comes back to the purpose of the bill. The bill as drafted will not alter the current legal framework. There seems to be some debate around the duty to consider, but it is just a duty to consider whether to share information and it refers back to the current legal framework on sharing. What is the point of creating legislation that would require a code of practice to sit underneath it, which is what the Supreme Court said that it wanted? However, if we do not legislate, we do not need a code of practice. That point takes away all the debate about what should be in the bill, the code of practice and statutory guidance. We just need to say that we have the current legal framework and do not need another bit of law that says, “Apply the current legal framework.” We could just withdraw the bill and give practitioners what they need: clear, robust and accessible national guidance and a way forward that everybody can follow.

Liz Smith

What would be your advice to the considerable number of practitioners—many of whom are supportive of getting it right for every child and the named person policy—who have come to this committee and said very clearly to us that they want that code of practice to be crystal clear so that they understand their responsibilities? If your argument is that we do not need that code of practice, what safeguard—an important word in this context—can be put in place to ensure that practitioners have the confidence, understanding and ability to decide when to share information? What would be your advice to them? A lot of them are feeling very exposed on the issue of sharing information.

Alison Reid

I can understand everybody wanting a clear way forward, but legislating and putting a code of practice into the legal framework would be difficult. Janys Scott QC has talked about how difficult it would be to draft that code of practice; I think that she said that it would be extraordinarily difficult to draft it to make it human rights compliant. The problem is that the bill will make the legal framework more complex because all that it will do is add a layer to what we already have and try to introduce different concepts of wellbeing. It is complex law, but trying to restate it will not make it simpler; it will just make it more convoluted.

Liz Smith

Would you accept that, as Maggie Mellon said earlier, in order to do our best for the most vulnerable children, which is the most important aim, it would be better if there was a duty on institutions and local authorities to make provision, but not enforced in the way that the named person policy has evolved?

Alison Reid

I am not so sure about the whole named person policy. I have been concentrating much more on information sharing and how the bill will affect that. I can see the attraction of trying to put it in a code of practice and clarifying the law in that way, but we cannot really do that because we have to comply with data protection and human rights, so it does not help. I am also worried about imposing a duty to consider, because professionals are working under those legal and professional duties anyway and would carry that out.

11:30

The Convener

What difference would it make then? If professionals are already working under those conditions, what difference would it make?

Alison Reid

The difference is that it makes it less compliant with human rights because—

The Convener

The point that you made was that you were concerned about the workers who are already working under those duties. In practical terms, it would not make any difference to the workers because they are already doing that work, according to what you just said.

Alison Reid

Yes, that is right. The problem is that, once you introduce any kind of information sharing legislative scheme, you have to overcome all the issues around human rights and the complexity of the system, which then has to be compatible with human rights.

The Convener

That would not be an issue for the individual worker, but for the organisation that they worked for.

Alison Reid

Yes, Janys Scott QC talked about that and section 19(8) of the Children and Young People (Scotland) Act 2014 covers it. It would be unusual for an individual practitioner to be held liable unless it was very serious.

The Convener

Liz Smith, are you finished with your questions?

Liz Smith

Ms Prior wants to come in.

Eileen Prior

I want to take you back to what the 2014 act was about. It was about providing support for families and not about information sharing. The purpose was to ensure that vulnerable families and, let us face it, poor families, because this is mostly a poverty issue, had the support that they and their children needed.

I am sorry, but am I saying something funny?

The Convener

Excuse me; talk through the chair.

Eileen Prior

It was just the smile on Ms Maguire’s face there.

The Convener

People are entitled to make whatever facial expressions they wish in the committee.

Eileen Prior

I do not think that it is particularly funny that we have a lot of children—

The Convener

And I do not think that Ms Maguire was in any way making any humorous faces.

Ruth Maguire

I grimaced at the expression “poor families”; I did not smile. There is nothing funny about it at all. I am very clear about what this is about.

The Convener

You did say what it is about in your first answer, Ms Prior.

Eileen Prior

Sorry?

The Convener

You mentioned what the act was about in your first answer to Liz Smith.

Eileen Prior

Yes, but we also have to think about the impact of the 2014 act, which is to oblige services to provide support to families. At the end of the day, that is its purpose. However, we are seeing services shrinking. Going back to what the earlier panel said, the services that are available to families are shrinking and we are now providing families with less support than we were when the act was introduced. I really struggle with that.

The Convener

We are here to discuss the bill and not the budget for local authorities and the country. I accept that all these things are difficult.

Gillian Martin

I want to come back to the code of practice. It has been interesting to hear what you have said about consistency across the country. Some areas will already be doing things well and children will not be falling through the gaps, and that is what this is all about. Other areas of the country will be having their issues.

As representatives of agencies for people who will have to work every day with the named person policy, what are you looking for in a code of practice?

Kirsten Hogg

The primary concern of the coalition with which we provided evidence is clarity for practitioners.

It is important to give a bit of background to that. Since 2013, practitioners have had two sets of guidance from the Information Commissioner’s Office about information sharing in this context. They were ready to go with implementation of the 2014 act in August 2016. Everyone understands the current lack of clarity and the reasons why people sometimes feel unsure about information sharing. Our priority is to consider the best mechanisms by which to provide that clarity for practitioners.

We would really like to focus on the statutory guidance for parts 4 and 5 and section 18, because we think that that would help to put information sharing into the wider context of the named person scheme. It would also help people to understand why it is important and not just a technical issue. Our understanding from the bill team is that the code of practice will be binding on everybody who falls under the scheme. Therefore, it needs to concern itself with the legalities of information sharing—how people comply with the Data Protection Act 1998 and the Human Rights Act 1998 and with whatever other legal gateways there might be.

We would really like there to be something in the guidance that helps practitioners to interpret that for their own situations. That is crucial. I have concerns about practitioners potentially having to consult two different documents—the code of practice and the guidance. Such a situation would not be insurmountable, but it needs to be taken into consideration. Other witnesses have spoken about flow charts, practice examples and things that will help practitioners to understand how information sharing might look in their own contexts.

It will not be possible to provide black and white examples that say, “In this situation you must do this.” Practitioners must always be able to use their professional judgment, and different families and children will always find themselves in different situations. The guidance needs to provide a framework that helps practitioners to think that through on an individual basis. It is really important that the guidance does not stand alone; it needs to be supported through training.

I very much agree with the points that have been raised by the centre for excellence for looked after children in Scotland—CELCIS—on the need for supervision arrangements within organisations or other ways for practitioners to have conversations with others who can help them to think things through if they feel that they are complex.

There needs to be a whole range of stuff—a suite of materials—that people can consult. We hope that that will provide the clarity that practitioners are lacking at the moment.

Gillian Martin

Other people might want to say what they would like to see in the code of practice.

Alison Reid

I will be brief, as I have already said that I do not think that we need a code of practice. I agree with everything that Kirsten Hogg says about the clarity that is required, and I think that it could be in the guidance.

Gillian Martin

The code of practice would not preclude individual organisations from having their own relevant materials.

I am struck by the points that Professor Loucks has been making about her particular situation, which has been slightly different in many cases. I take it that you would have a code of practice at the top level and adapt it for your practitioners so that it was relevant.

Professor Loucks

That is the type of thing that can be incorporated into guidance. Some of the discussion has been about what we should not share, but part of it is about what we should share and about ensuring that people recognise that.

The issue is addressed in our written submission. There is a contradiction with some existing legislation, such as the Criminal Justice (Scotland) Act 2016, in which we say specifically that the information must be shared. That is not recognised as having an impact on child wellbeing at the moment, so we should ensure that any guidance takes such issues into account.

I agree completely with what Kirsten Hogg just said about the code needing to be backed up by training and information for practitioners.

Gillian Martin

Last week, our panel of witnesses, which included representatives from the police, spoke about working in partnership with those in other sectors to develop an understanding of those sectors and of how you can work together with them. What do you feel about that?

Professor Loucks

That is essential, and it is one reason why our organisation supports the role of the named person and having someone with an overview of a number of the issues that will be relevant to supporting children and families.

Oliver Mundell

I have a couple of questions for Alison Reid. I understand that you do not think that a code of practice is necessary. However, I am interested to note what you say in your written submission. You state that

“the illustrative Code cannot be regarded as sufficient to overcome the clear concerns of the Supreme Court.”

Given the central importance of the illustrative code, do you think that it is essential that Parliament sees the content of the final version before the bill is passed?

Alison Reid

Yes. If you are going to proceed with the bill, the code of practice is key. The code is part of the legislative scheme that is going to be tested or questioned in terms of its human rights compatibility. It is important that the code is seen and scrutinised, as has been discussed.

Oliver Mundell

Given the history of the legislation, the fact that it has been to the Supreme Court, the considerable public and media interest in it and the interest that practitioners have shown in it, do you share my concern that passing the bill without seeing the final code of practice would expose the Scottish Parliament to considerable further reputational risk?

Alison Reid

Yes, I do. We have not talked much about the decision in the Supreme Court. One of the key things that the court wanted people to be able to do was regulate their own conduct so that they were able to decide what was to happen to the information that they had. That is one of the key things that need to happen to make the legislation compliant with article 8 of the European convention on human rights. If the Parliament does not see the code and how the framework will work, it will be difficult to make the call on whether that has been achieved.

The Supreme Court’s other key point was about accessibility and how easy that is to understand. Accessibility is a difficult concept to codify. The law is complex as it is, never mind with the addition of further layers. It is important that scrutiny of the code of practice takes place, if that is the route that is taken.

Oliver Mundell

I have one final question for all panel members. In the previous evidence session, the committee heard a suggestion from a witness that, if the bill were passed as it is currently drafted, there is a reasonable likelihood that some of the issues would be tested again in court. In the long run, does subjecting the legislation—whether the whole act or how it is implemented by individual practitioners—to continual legal testing help or hinder the culture of information sharing that has been talked about positively?

Alison Reid

Clearly, that is not going to be helpful. Practitioners need to know what is going on, and all the dialogue is just confusing. The sooner that this can be sorted out, the better for those who are trying to work the system.

Ruth Maguire

We have spoken quite a bit about wellbeing and have heard differing opinions on whether there needs to be a tight definition of it.

What are the panel’s reflections on the value of a subjective approach, particularly for practitioners? Situations will be different for different families and there cannot necessarily be a checklist of points to suggest whether a child needs further assistance. We have covered the issue already, but is there anything to add?

Kirsten Hogg

Barnardo’s and the other charities with which we provided written evidence have been using the SHANARRI indicators for some years, and staff feel comfortable using them to make decisions about their own professional practice. Staff feel comfortable that the wellbeing indicators allow them to consider the needs of a particular child or family and to think about how best to support that family.

Practitioners feel less confident on the law’s understanding of those indicators, and we hear concerns that there are sometimes grey areas around where practitioners would share information. There are no grey areas in considering how we could support families, but there are grey areas around whether the sharing of information supports those families.

As a group of charities, we did not come down on one side or the other; we simply present to the committee that there is a catch-22 situation. Practitioners are telling us both things: that they value the flexibility of those indicators and being able to use their professional judgment to think about individual circumstances but that there are times when they feel that it leaves them a little exposed.

11:45

Ruth Maguire

What would help to improve that?

Kirsten Hogg

I was struck by what Sally-Ann Kelly said in the previous evidence session about finding ways to help practitioners to understand and interpret the code. That would help a lot with practitioner confidence, although it might not help with the question of whether decisions would stand up to legal scrutiny, which remains a question.

Professor Loucks

I agree completely. There will always be areas where discretion is inevitable. The issue is about ensuring that that discretion is defensible, because we do not want people not to share information for fear of litigation. In most cases in which people already support families, they can have those conversations, discuss whether information sharing is appropriate and get consent for that. It is in relation to cases in which families might object to the sharing of information that the threshold for what can be shared without consent might need to be raised, and that is where we head into the child protection concerns. The issue certainly needs further definition and discussion.

Daniel Johnson

On that point, do you accept that the bill does not change that threshold, which is set down by the DPA? As much as we might want to change the threshold, the bill cannot do that.

Professor Loucks

That is my understanding.

Liz Smith

I want to go back to the dilemma that Kirsten Hogg has just enunciated for us. If practitioners are to do their best for our most vulnerable children, they need to know categorically when they can share the necessary information. If something is below the threshold of intervention for child protection reasons, they want an assurance, when they make a decision to share or not, that they have done the right thing. Is it possible to give them that confidence and legal authority if we do not have a greater definition of wellbeing and an explanation of the purpose of the wellbeing argument in the legislation?

Almost everybody who has come to the committee, including those who are in favour and not in favour of the policy, has asked for that clarity and feeling of security and doing the right thing by the law. It is all very well to say that certain aspects of the law do not change anything, but people feel that those aspects do change things, because they do not know where they stand. We have heard that message time and again. Do we need more clarity in the law on what practitioners can and cannot do?

The Convener

Does anybody want to answer that? Ms Reid does—I suspected that she might.

Alison Reid

The difficulty is that practitioners cannot share information at that level, because any sharing has to be done within the human rights and data protection legislation. I do not think that putting something in a code rather than putting it into guidance helps to provide clarity. The issue is all about giving professionals the confidence to use their experience in making decisions. It is about setting out clear guidance with examples so that they can do that.

In the past, we have provided training relating to underage sexual activity, on which subject it is very difficult for people to decide what their approach ought to be. There is good guidance, including from practitioners who have made video clips on how they would address case studies, that tries to give people confidence to use their professional judgment. The difficulty of putting something into law is that we then have all the other problems that we have discussed, which are to do with making the whole framework human rights compliant. If we do not do that, we do not have to face that level of issue.

Liz Smith

I accept that. The committee is trying to do the best by practitioners and ensure that they are given the necessary support to support the families. However, the strong message that is coming to us is that, at the moment, they feel uncertain and do not know where they stand, and we are desperately searching for a way to give them certainty. That is the nub of the issue. As Tavish Scott rightly said, that matters from a legislative point of view because the Parliament must be informed about the right way forward to ensure that we do the best by families. At the moment, I am not convinced that we are able to do that, because we have an illustrative code of practice that has been criticised by many witnesses. I am interested in how we can get round that.

Kirsten Hogg

There are two factors in play: clarity and confidence. It is important to consider them as two different things, as practitioners’ confidence in their ability to know what to do about information sharing has taken a knock because of the context that I described earlier involving the different pieces of information that have been given to them. Some of that will never be solved by writing something down. Some of it is about the training, the professional development and the support and supervision that practitioners need to rebuild their confidence that they are sharing the information in the interest of getting support for the families, that consent is part of the conversations that they have with people anyway and that, in many cases, it is not a huge change in practice.

Nevertheless, there is a case for a much greater degree of clarity. Our problem with the illustrative draft code of practice is that it says, for example, that there may be other legal gateways by which we could provide information without consent. I am not an information professional but my understanding is that, by and large, if a practitioner does not have consent, those other legal gateways are incredibly limited to the point of it being almost possible to say that, if they do not have consent and the information does not address a child protection concern, they should not share. Practitioners would value a message of that directness.

It should be possible to provide certainty, but it must not be simply something written down. It must come with a lot of other support for practitioners as well.

Liz Smith

Thank you. That is helpful.

Colin Beattie

We are talking a lot about wellbeing and consent. What impact will UK and European data protection law, such as the introduction of the GDPR, have? We have some anecdotal evidence from previous witnesses that there is already a degree of defensive working in anticipation of that legislation coming through. How will that impact on the bill and working practices?

Kirsten Hogg

My concern is that, for practitioners, it is another set of acronyms and another unknown. We need to ensure that we time the information about the requirements correctly so that, when it goes to practitioners, they are fully cognisant of the GDPR and it is not that, six months down the line, the GDPR comes into force and things change for practitioners again.

As I said, I am not an information practitioner, but I understand that in some circumstances, for organisations such as ours, the GDPR will turn consent on its head, so there could be fundamental questions about what it means to share information. Therefore, it is important that, when information is given out to practitioners, they are cognisant of that.

Eileen Prior

We have looked at the GDPR from the perspective of parents and children in schools, because that is the area in which we work. We are clear that informed consent will be required for the holding and sharing of data. As we said earlier, that does not just mean a tick in a box on a form; it means parents and young people fully understanding the context in which that information may be used. There is no doubt that it will make the scenario a good deal more complicated.

Professor Loucks

I reiterate the concerns that I expressed at the beginning about consent. I know that we have moved on from the consent discussion, but the points are very related if we look at international conventions such as the United Nations Convention on the Rights of the Child, which states specifically in article 2 that children should not be discriminated against on the basis of the legal status of their parents. That is information about the parent but it pertains to a child, so whose data is it? Whose information is it and who has to give consent for that? I am still not clear about that.

Colin Beattie

Based on what we have seen about the GDPR and the question of consent, and the emphasis on the disparity between the person giving the consent and the local government authority or the organisation that might be receiving that consent, how will that work? It seems to be an incredibly difficult hurdle to satisfy.

The Convener

There do not seem to be any simple answers coming from the panel. Ms Reid, do you want to comment?

Alison Reid

It is a really good question. I do not know the answer. The Information Commissioner’s Office raised that as an issue and if it cannot answer the question, I am not sure that I will be able to. There is certainly an issue around the balance of power but I am not able to help clarify that.

Johann Lamont

Previous witnesses have talked about the financial memorandum and the extent to which they can deliver on the expectations around the legislation. I wonder what the practitioners on this panel think. Kirsten Hogg spoke from Barnardo’s perspective about the importance of training—on-going training, training for new staff and so on. Have you been able to quantify what that would mean for your organisation?

Kirsten Hogg

We have not been able to do that at this stage because that will depend to a large extent on what information is forthcoming from the Government. If it provides us with a fantastic training package and some training for a couple of people, we can start to cascade that through the organisation. If that is not available and we have to start from scratch, that will be different. We are not in a position to quantify that until we know what it looks like.

From memory, I think that the third sector is not included in the financial memorandum; it relates only to those who serve the purpose of the named person. However, a significant number of third sector organisations will be in a position to share information with the named person and will therefore require that training and support. At the moment, I do not think that third sector organisations are considered in the financial memorandum.

Johann Lamont

If it is going to be done properly—and it is complex—would you expect to bear some significant cost?

Kirsten Hogg

Absolutely. There will be costs attached.

Johann Lamont

We have largely heard Alison Reid’s view on this, but we are in the position where we have the legislation and it looks as though there are unintended consequences—I am interested in the witnesses’ comments on that—and there may be defensive practice. Should we try to make the bill fix the problem, or is there a danger that we will end up making life more difficult for practitioners without necessarily having any more confidence that we are supporting young people and their parents?

Does the bill make things better or worse? That is what we are wrestling with. Does it sort out the unintended consequences or would it be better, in terms of the principles of the original idea, not to have it? You can make things work but is it a difficult thing to do? Would it be better to go back to relying on the judgment of practitioners?

Eileen Prior

From our perspective, the bill does not add anything. I have alluded to the reality in relation to the resource that we are not able to give to families. In fact, our perspective has always been that when it comes to that cross-local authority, cross-service, cross-health board connection and ensuring that there is proper care and support for families who are perhaps moving about or whose children are moving about, that is the role of the lead professional not the named person, because although the lead professional role is not within the legislation, it is within the guidance.

If a child or a family asks for support and multi-agency support is required, a lead professional would be appointed. That lead professional is the key role in supporting a family when there are multiple agencies and perhaps different local authorities and different health boards. That is where the fix is, because that is the role that will really provide comprehensive support for families; it is not the named person.

12:00

Alison Reid

I do not want to repeat myself, but from where I am coming from, the bill makes it more complex and it does not add anything. We would be better off putting our energy and all our expertise into trying to get good guidance that will help practitioners through this in the best way that we can.

Kirsten Hogg

People have mentioned defensive practice a few times. For us, that comes less from the bill and more from the context of the last four years of uncertainty. From anecdotal experience, people are sharing less information. We need to get to a position in which people feel able to share information. Whether that is done through the bill or by some other means, the important thing is that we get to a point of clarity for practitioners because the defensive practice is coming more from that general feeling of uncertainty than from concerns about the bill in particular.

Johann Lamont

Would practitioners be more comfortable with professional expectations and standards rather than their actions being tested in a duty in legislation?

Kirsten Hogg

I think that both come into play.

The Convener

I thank the witnesses very much for their attendance and for their answers to our questions. I now close the public part of our meeting.

Seventh meeting transcript

The Convener

Item 3 is our final evidence-taking session on the Children and Young People (Information Sharing) (Scotland) Bill. I welcome John Swinney, the Deputy First Minister and Cabinet Secretary for Education and Skills, and his Scottish Government officials Ellen Birt, who is the bill team leader, and John Paterson, who is a divisional solicitor. Thank you for coming along today.

Cabinet secretary—I understand that you want to make a short opening statement.

The Deputy First Minister and Cabinet Secretary for Education and Skills (John Swinney)

Thank you, convener. I welcome the opportunity to be with the committee today to discuss the Children and Young People (Information Sharing) (Scotland) Bill.

I want to say at the outset that I accept unreservedly the Supreme Court decision, and that, as a consequence, I accept that the information-sharing provisions in the Children and Young People (Scotland) Act 2014 did not adequately respect the right to private and family life. The bill addresses the issues that the Supreme Court raised and will ensure that the rights of children and young people and their parents are respected.

The bill has two overarching objectives. First, its provisions will support agencies and individuals to work with children, young people and families in an integrated way. It also facilitates the lawful and proportionate sharing of information. That will ensure that every child and young person can better access the support and help that they need if they are to succeed.

Secondly, the bill will allow the sections in the 2014 act on the named person service and the child’s plan to be commenced. Without the bill to address the Supreme Court judgment, those legislative provisions cannot be commenced, which would, in effect, remove two key elements of the getting it right for every child approach, which are entitlements that arise from families themselves having asked for improvements in the support that they need and want.

That approach is required because too many children and families continue to struggle to navigate services, and too many children and young people do not get early access to support that could help them to succeed. An approach whereby we rely on the good practice of some people and hope that others will catch up will not deliver for every child and young person. That is why legislation is required.

We know that effective and proportionate sharing of information is essential to getting it right for every child. That is why the duty to consider sharing information, which is at the heart of the bill, is necessary. For the first time, relevant authorities and named person service providers will be required by law to consider the information that they hold, and whether the sharing of that information could support, promote or safeguard the wellbeing of a child or young person. The bill also provides professionals with a focus on considering the consequences for wellbeing of not sharing information when consent to share is not granted.

The measures in the bill must provide the clarity and certainty for which many people are looking, in relation to how to share information lawfully in the context of fulfilling the functions of the getting it right for every child approach.

I have listened closely to and carefully considered all the evidence on the bill that the committee has taken during stage 1. As I said in my letter earlier this week, I accept that there is more that I can do to ensure that we give everyone the certainty and clarity that they are looking for, following the Supreme Court decision, in relation not just to the bill’s provisions, but to the measures to which the bill will give effect, and the broader getting it right for every child ambitions.

Many witnesses have called for greater clarity about what the named person is and is not. We will therefore develop and deliver a positive awareness-raising campaign, which will make clear for children, young people, parents and practitioners what the getting it right for every child approach is about, and how the named person will support them. The Government will lead the campaign, but we will ensure that input from others informs our approach.

Witnesses also expressed concern about resources and support for implementation. I have reflected on the evidence that was presented to the committee. I confirm that further financial resources, over and above those that are set out in the financial memorandum, will be provided to assist implementation beyond the first year of introduction. I intend to consult stakeholders on the detail of that multiyear approach as the bill proceeds.

The code of practice that is provided for in the bill is an important part of the suite of materials that will be made available to practitioners to support their work. Although I had hoped that the illustrative draft code of practice would demonstrate how the power to make a binding code in primary legislation could work to address the issues that were raised in the Supreme Court judgment, I acknowledge that that approach has not had the intended effect.

It is essential that we get right the code of practice that is provided for in the bill, as well as the statutory guidance that is required under the 2014 act and other support materials that will be required. To ensure that, I will establish this month the getting it right for every child practice development panel. The panel will have an independent chair and will include broad relevant stakeholder membership to ensure that the materials are workable, comprehensive and user friendly. That approach will allow for full and proper consideration of changes to data protection law that will result from the European Union general data protection regulation and the United Kingdom Data Protection Bill. The panel will ensure that the experience and expertise of practitioners informs the material through dialogue and interaction with the wider stakeholder community, and that practical knowledge of information sharing in the public sector and children’s services is the foundation for the development of the materials.

As I outlined to the Delegated Powers and Law Reform Committee, my intention has always been to ensure meaningful dialogue and scrutiny of the code of practice by Parliament. I am happy to accept the recommendation of that committee that Parliament be given final approval of the code of practice. I will lodge an appropriate amendment at stage 2.

I am determined that the bill will ensure that everyone who works to support children, young people and families in Scotland will not only be doing so within the requirements of the law, but will feel confident in fulfilling our collective ambition to get it right for every child. I look forward to answering questions from the committee.

The Convener

I record my thanks to everyone who has contributed to the committee’s work on the Children and Young People (Information Sharing) (Scotland) Bill. In particular, I thank the attendees at the focus groups that took place last week for taking time out of their evenings to contribute to our evidence taking.

Earlier this week we received a letter from several organisations that originally had a great many concerns—they still have some—but now seem to be coming round to saying that it is important that the bill be passed. What has happened to make them change their position since we started taking evidence?

John Swinney

My attempt to try to be helpful to the committee—by providing a draft illustrative code of practice without all the consultation that we would ordinarily put into such an effort—has proved not to be helpful. The bill makes some very clear changes to the law in relation to the provisions of the 2014 act by establishing the duty to consider information sharing, as opposed to there being an obligation to share information, which the Supreme Court judged is not consistent with the article 8 provisions of the European convention on human rights. The approach that we have taken, which has been informed by other decisions of the Supreme Court, is to rely on informing that duty to consider through a code of practice. That code of practice will be binding. However, for it to be binding it must be clear and informative.

I took a decision late in the preparation of the bill to submit to the committee an illustrative code of practice along with the bill. Because I took that decision late, there was no opportunity to have a broad consultation. I thought that it would be helpful for the committee to see what a code of practice might look like. I accept that that has created some confusion and uncertainty among stakeholders. In listening to the evidence over the course of the past few weeks, I have made it clear to stakeholders that the provisions of the draft illustrative code of practice are just that—draft and illustrative—and are not the final product. I have set out to stakeholders and the committee the approach that I intend to take to ensure that we have a full, engaged and participative approach to formulation of the code of practice. I welcome the comments of stakeholders who have embraced that approach.

The Convener

Will the stakeholders who wrote the letter be consulted? Will they be part of the solution for the new code of practice?

John Swinney

Yes.

Liz Smith (Mid Scotland and Fife) (Con)

Cabinet secretary, can I take you back to when the Children and Young People (Scotland) Bill first went through Parliament? At the time, we were advised by the Scottish Government that the legal advice was accurate, but that turned out not to be the case. Independent legal advisers warned of a potential danger that was exactly what turned out to be the decision of the Supreme Court. I have a question that is important to the committee, as we attempt to scrutinise the bill. Can you outline what legal advice you have taken this time?

John Swinney

I need to put the question from Liz Smith into a wider context. Prior to Parliament passing the Children and Young People (Scotland) Act 2014, the Government had obviously taken the necessary advice in preparing that bill and introducing it to Parliament. The 2014 act was then tested in both the outer house and inner house of the Court of Session—the highest courts in Scotland—and both courts dismissed the legal challenges to the legislation. The case was then referred to the Supreme Court.

When we look at the practice of the Supreme Court in the period between 2014, when the act was passed, and the judgment that emerged in the Supreme Court in July 2016, we can see that it had been pursuing a consistent line of legal interpretation and analysis in a number of judgments that had not preceded the passing of the 2014 act, but had followed it. In a host of different questions, the Supreme Court required public authorities to set out interpretations of legislative provisions, as the Supreme Court said, “in accordance with the law”. The emergence of that strain of thinking in the Supreme Court’s considerations post-dated the 2014 consideration of the Children and Young People (Scotland) Bill. Obviously, that influenced the Supreme Court’s judgment in July 2016.

I accept that interpretation of the law moves on and that the Supreme Court has jurisdiction over those questions. That is why, at the outset of my comments to the committee this morning, I unreservedly accepted the Supreme Court judgment. In defence of the advice that the Scottish Government took in 2014, I point out that that advice was based on the legal debate at that time. Obviously, the decisions of the outer house and inner house of the Court of Session were taken in that context, as well. The world moved on subsequent to 2014, with the decision of the Supreme Court, which is why I am now taking the steps that I am taking with the Children and Young People (Information Sharing) (Scotland) Bill.

Liz Smith will know the conventions that ministers follow on whether legal advice has or has not been taken. However, I can say to the committee that I would not be here today if I had not taken all the necessary advice that I believed I should and ought to take—and follow—in getting to the point that we are at today.

Liz Smith

Thank you for that, cabinet secretary. Notwithstanding the context that you have given, the fact of the matter is that the Supreme Court made a ruling that has been very difficult for the policy of the 2014 act. Our difficulty as a committee in scrutinising the Children and Young People (Information Sharing) (Scotland) Bill is that members of the legal establishment are very concerned that the bill does not address or, in some cases, does not fully address, the legal concerns that were raised by the Supreme Court.

Our scrutiny responsibility is to ensure that we hold the Scottish Government to account on the legal advice that has been provided; we have heard that there is still a great deal of concern about the legal context of the bill. That needs to be set against your comments to the Delegated Powers and Law Reform Committee, in which you said that advice—in particular, the advice that was provided to that committee by the Faculty of Advocates—was incorrect. Could you explain to this committee why you believe that the legal advice that you have taken addresses all the concerns of the Supreme Court?

10:15

John Swinney

The issues that were raised by the Supreme Court related to two questions: the proportionality of the approach that we had taken to information sharing, and how we had distilled the legal framework to ensure that the framework in which they operate would be clear to practitioners. Those two issues lay at the heart of the Supreme Court judgment.

The measures that I have taken are designed to inject proportionality into the information-sharing process. The bill does not provide for a duty to share information; it provides for a duty to consider sharing information. We will set out in the code of practice how that proportionality should be exercised.

The Supreme Court judged—this relates to my point about the need to set out the provisions in accordance with the law—that we had not marshalled our propositions in such a way that practitioners could readily access that information. I think that the Supreme Court said that a “logical puzzle” lay at the heart of it all. The bill that is before the committee makes the appropriate provision.

I will turn to some of the evidence that the committee has considered on the legal question. Liz Smith is absolutely correct to say that the Faculty of Advocates has raised issues in that respect, but in its submission on the bill the Law Society of Scotland said:

“The move from a duty to share to a power to share information, and an emphasis on the need to consider whether information is relevant and can be shared, is a helpful safeguard from the perspective of ensuring proportionality.”

I cite those two points, which have been made in the legal debate that the committee has heard, to illustrate that it is not a new situation that we find ourselves in. We are legislators—we deal with legal debate about various provisions, and we must come to decisions. It is a situation that we find ourselves in constantly. We have looked carefully at the issues that the Supreme Court judgment raised—which I am acutely aware must be addressed—and we have taken the necessary advice and steps to get us into the position of being able to introduce a bill for Parliament to scrutinise that will enable us to address those issues.

Of course, that will not make the legal debate disappear. I accept that there will be legal debate about the issues in question, but I say to the committee that the Government has taken the necessary steps to address those points.

Liz Smith

I am sure that other colleagues want to come in on this point, too, but I make the point again that, as a committee, we are in an exceptionally difficult position It is very clear that, in 2013 and 2014, there was legal opinion out there, which was subsequently proved to be correct, that the Children and Young People (Scotland) Bill gave rise to a lot of legal issues.

We have before us a Scottish Government that is telling us that the new bill—the Children and Young People (Information Sharing) (Scotland) Bill—has addressed those concerns. To use the cabinet secretary’s own words, time moves on and part of time moving on is that there is new legislation coming down the line, in particular in terms of data protection, in the not-too-distant future.

However, there is also legal opinion that is still questioning—in some cases, significantly questioning—whether the Scottish Government has got its legal advice correct. In my opinion, that legal opinion matters very much to the rest of the debate, and it matters to effective scrutiny by Parliament. So, I ask the cabinet secretary again: are you absolutely confident that the bill will not be challenged in a legal context again?

John Swinney

First let me come back to something that I have said already, which contests the point that Liz Smith is making about legal debate in advance of the 2014 bill. The 2014 bill was tested in the outer house and the inner house of the Court of Session.

Liz Smith

And it was proved to be wrong.

John Swinney

I beg your pardon.

Liz Smith

It was overruled.

John Swinney

It is not for me to question the judgments of the inner house or the outer house. My duty as a legislator is to respect the decisions of the courts, and those two courts validated the approach that we had taken. Subsequently, it went to the Supreme Court, which took a different view. I am respecting that opinion because it is my duty to respect what the courts say. For completeness, I am making the point that the legal position that was taken by the Scottish Government was validated by both the outer and the inner houses of the Court of Session, so it is wrong to say that there was no legal judgment or debate on the questions.

On the second question, asking whether I can say that the bill will not be challenged legally, that is not for me to say. I cannot stop individuals challenging the bill legally. This is a free country and people can make whatever legal challenges they wish. From my point of view, the issues that were raised by the Supreme Court judgment are the issues that I am obliged to address if I wish to commence the provisions of parts 4 and 5 of the 2014 act. That is precisely what I am bringing before Parliament, with confidence that the provisions have the legal foundation to address the issues.

Ross Greer (West Scotland) (Green)

It has been suggested that a number of organisations that expressed concern have changed their positions and have moved on, and that that was simply down to an initial lack of understanding of what the Government was proposing. Although that is understandable, given that there seems to have been a failure to live up to the promise of a summer of comprehensive consultation, I think that it is about something far more substantial than that. Evidence from the Children and Young People’s Commissioner Scotland states that the new bill

“is intended to address the technical deficiencies in the CYP Act relating to information sharing by amending the Act to ensure it is compliant with the Data Protection Act (DPA) 1998 and with the ECHR. The bill as currently drafted does not achieve this.”

Why has the Children and Young People’s Commissioner Scotland taken that position? What has he not understood?

John Swinney

It is for the Children and Young People’s Commissioner to set out to the committee his rationale. The Supreme Court raised two important questions for the Government to consider, and I addressed them in my answer to Liz Smith a moment ago. The Government has made provisions that engage directly with those two questions.

Mr Greer said that there was a suggestion that stakeholders had not understood the Government’s provisions. That is not my position. The Government did not explain effectively its provisions in the draft illustrative code of practice, and I have set out for the committee why that happened. I made a judgment during the preparation of the bill that it would be better to provide the committee with a draft illustrative code of practice, because I thought that the committee would say, “We’ve got this bill and it’s dependent on a code of practice. Where’s the code of practice?” I thought that, for completeness, I would provide a draft illustrative code of practice to show the type of territory that we would be covering.

However, I accept that we did not have adequate time to consult with stakeholders, who would have been able to give us a more enhanced proposition. I cannot expect those stakeholders to be comfortable with the contents of the draft illustrative code of practice, because they did not have adequate opportunity to participate in the process.

There is no lack of understanding on their part but an acceptance on my part that, we decided to do something while we were preparing the bill, but we did not have adequate time to engage our stakeholders on it. I will make sure that we do so as we proceed with the bill and design the code of practice.

Ross Greer

The provision that was set out in the 2014 act was deemed disproportionate. The Government’s proposal is to bring in a new provision for a statutory duty to consider sharing information. Bearing in mind that there will almost certainly be a further legal challenge, would it not have been legally more secure, instead of introducing a new provision, simply to state that information sharing should take place under existing data-sharing frameworks?

John Swinney

In my view, that is precisely what we have done. We are saying in the bill that the consideration of information sharing that must be undertaken must be entirely compatible with the existing legal framework. In the bill’s supporting documentation that is available to practitioners, we will address the second issue in the Supreme Court judgment by setting out clearly a distillation of what the framework looks like to enable practitioners to take forward their judgments when exercising that duty to consider.

Ross Greer

There was a requirement in the 2014 act to have regard to the views of the child or young person, taking into account their level of maturity and so on. Why is that no longer the case?

John Swinney

It will be the case. The way in which judgments around the seeking of consent to share information are to be arrived at and the clear involvement of children and young people in that process will be set out in the code of practice.

Ross Greer

Thank you.

Ruth Maguire (Cunninghame South) (SNP)

We have had feedback from stakeholders that GIRFEC—getting it right for every child—is a world-class practice framework. Two of its elements are the named person and the child’s plan, which are parts 4 and 5 of the 2014 act. What will the impact be if we do not bring forward the information-sharing provisions?

John Swinney

As things stand, I cannot commence parts 4 and 5 of the 2014 act. The provisions on the child’s plan and information sharing cannot be commenced without alterations, because the Supreme Court has raised issues with the legal framework. If we do not secure that legislation, those elements of the 2014 act cannot be commenced.

Ruth Maguire

In the Government’s stakeholder engagement, have you heard any alternatives that address the Supreme Court judgment and allow commencement of parts 4 and 5 of the 2014 act?

John Swinney

The Government arrived at the contents of the bill after a period of consultation that took place in the latter part of 2016. The information that we gathered in that discussion with stakeholders led us to the formulation of the bill. I am satisfied that, at that moment, we had a good and open discussion with stakeholders about the correct approach to addressing the issues that were raised by the Supreme Court, which got us to the legislation that is in front of the committee.

I did not hear approaches that would have enabled us to do this differently—to achieve the purposes that were envisaged in the original legislation of ensuring that the named person proposition was more widely available in Scotland through legislation—or that would enable that to be achieved without the changes to the law that we are now making. That dialogue was very helpful in getting me to the point of realising what measures we had to take to ensure that that was the case.

10:30

Oliver Mundell (Dumfriesshire) (Con)

I heard what the cabinet secretary said in response to colleagues about not having control over whether individuals choose to challenge the legislation. Given the complexity of the issue, and the fact that a leading family law Queen’s counsel, the information commissioner and a number of other legal experts have told us that the bill is open to challenge, how much confidence does the cabinet secretary have in the legal advice that the Scottish Government will be successful in the event of a legal challenge?

John Swinney

The judgment on that question is informed by looking at what the Supreme Court said in July 2016 and identifying whether the issues that were raised have been adequately and directly addressed by the provisions in the bill. That is what I focused on in my thinking and in the advice that I have taken. I want to be in a position in which, if the legislation is challenged, the challenge will be unsuccessful. My consideration has been focused on the direct questions of proportionality and codification, if I could summarise them in that way. The provisions of the bill directly address those questions so I am confident that the Government has now addressed the issues that the Supreme Court raised. Fundamentally, I have to accept that that is my best assessment of it. If there were to be a challenge, the courts would have to determine that challenge.

Oliver Mundell

That is one of my big concerns. A huge amount of damage could be done if there were to be another successful challenge, because it would derail a huge part of the Scottish Government’s and this Parliament’s agenda. Making such a tricky decision is difficult for the committee because we do not have access to the Scottish Government’s legal advice and a large part of it is based on the cabinet secretary’s assessment of the law and how much confidence he has about that legal advice. Given how controversial the issue is and the size of the challenge, is the cabinet secretary willing to take personal responsibility and to consider his own position if the legislation falls apart? I am trying to get a feel for how confident the cabinet secretary is about the advice and on what scale.

The Convener

The committee is not really the place to ask for the cabinet secretary’s resignation. [Laughter.]

Oliver Mundell

I am only asking for his resignation if the legislation falls apart.

John Swinney

From the way that the question was heading, I thought that Mr Mundell was going to ask me if I would place a bet on it, which I most definitely will not.

Oliver Mundell

I would also take that kind of assessment. On a scale of one to 10, how confident are you?

John Swinney

The committee knows me well enough to know that I fulfil my ministerial responsibilities in a deadly serious fashion. I have taken all proper advice and consideration to come to the conclusions that I have reached. I have come to the meeting this morning and been quite candid about a misjudgment that I made when I gave the committee a draft code of practice that was illustrative and had all the caveats in the book, but which created more confusion. I did not want to do that and I am sorry that the committee has had quite a bit of its time taken up by the debate on the code of practice, which is not the subject and the question that the committee is being asked about. That is my judgment of the past few weeks.

In coming to the committee with the bill, I have taken all the necessary advice to satisfy me in my judgment that the two issues of proportionality and codification have been addressed in the bill. If there is a legal challenge, the courts will determine that.

Mr Mundell raised the issue of derailing our agenda, but the agenda can be derailed in a host of different ways. It can be derailed by practitioners becoming anxious about deploying some of the measures because they do not feel that there is a clear legal framework in place. I am trying to put a clear legal framework in place. The agenda can also be derailed by a court challenge that says that it is not fit for purpose, and that would be a judgment for the courts.

I am not bringing to the committee something that is unnecessary—it is something that we need to do if we want to have in place the support that makes the child’s plan and the getting it right for every child agenda meaningful through the exercise of the named person responsibilities. That is the basis on which I have reached my conclusions.

On the final point raised by Mr Mundell, I take responsibility for all my decisions as a minister. I have to be accountable for all those decisions.

Oliver Mundell

May I ask a number of technical questions, convener?

The Convener

How big a number?

Oliver Mundell

I will stick to three snappy questions.

Cabinet secretary, you said that the legal framework had changed since 2014. Given that there are three pretty prominent cases listed in the “In accordance with the law” section of the Supreme Court judgment—Sunday Times v United Kingdom, Gillan v United Kingdom and Silver v United Kingdom—can you talk me through how you felt the original bill met the considerations of the those cases?

John Swinney

The point that I was making in my answer to Liz Smith was that it is clear that the thinking of the Supreme Court had developed subsequent to the passage of the 2014 act and that the Scottish Government had formed its view on that approach prior to the thinking of the Supreme Court becoming clearer.

Oliver Mundell

I think that the Supreme Court also took issue with foreseeability. Paragraph 77 of the Supreme Court judgment starts to address that. How did the cabinet secretary interpret what was set out in paragraphs 76 and 77 of the 2010 judgment in Gillan v United Kingdom, which was made before the 2014 act was passed? Those paragraphs talk about who legislation is intended to cover and giving people protection against arbitrary interferences. Had the Scottish Government considered those legal issues last time around, and does it consider that it has met the requirements this time around?

John Swinney

The questions in the essence of the Supreme Court’s judgment of 2016 on our provision were driven by a requirement to ensure that the codification of different provisions was set out in a fashion that made clear the obligations on practitioners and authorities, but was not seen as obligatory before 2014 or by the judgments that were made by the Court of Session in either the inner house or outer house at that time. My point is that the Supreme Court’s judgments have taken a form that requires them to be part of the legislative framework and legal consideration that we had to take into account. The bill before the committee is designed to do exactly that.

Oliver Mundell

Thank you.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

I would like to consider the concept of wellbeing. The Supreme Court said that wellbeing is not defined and that the only references available were the eight SHANARRI indicators—safe, health, achieving, nurtured, active, respected, responsible and included—which have been around for a very long time and some of which are very vague. Does “wellbeing” need a more specific definition, to ensure that the legislation is implemented consistently?

John Swinney

The question of wellbeing was addressed in the 2014 act, which sets out the eight wellbeing indicators. Those are subjective terms, but they are designed to provide a context within which professionals can exercise professional judgment about how effectively a child or young person’s wellbeing is supported.

That is not a new framework; it is a framework within which professionals have been operating for some time, and it assists them in formulating their judgments about whether the wellbeing of young people is being properly supported. The definition is set out with a clarity with which professionals are familiar and which enables them to exercise their judgment.

Colin Beattie

Some practitioners commented that there needs to be flexibility in the definition of wellbeing, because a definition that is too tight will lead to discrepancies in implementation and interpretation. They said that the definition of wellbeing is sufficiently flexible that different practitioners can interpret it for the purposes of their own discipline, trusting to their professional expertise, which works well. Do you agree, or is the definition too loose?

John Swinney

That is the framework within which professionals want to operate. The named person provision is about taking proactive measures to intervene earlier to provide support before problems become more serious and affect the welfare and safety of a child—which brings in a completely different regime—or might crystallise into issues that require greater public sector intervention to meet a child’s needs. We are all familiar with the rationale: the earlier that we intervene to support a child or young person and their family, the better. The definition of “wellbeing” in section 96 of the 2014 act is designed to create the framework within which professionals can operate to exercise that judgment.

Colin Beattie

Witnesses also commented on training in different local authorities and said that, in some local authorities, training might take people down the road of a slightly different definition of “wellbeing”. That seems to be welcomed by practitioners, but would it create a difficulty if there were a national roll-out of training? Would that be precluded?

John Swinney

No, because the legislation is predicated on the exercise of professional judgment, and it is for professionals, whom we trust ordinarily, regularly to exercise their responsibilities to consider and interpret the characteristics that we are talking about and decide whether there is a requirement to offer support or to intervene in a particular way to meet the needs of young people. A range of indicators is set out in section 96, but it is up to professionals to decide how best to exercise their judgment within that framework.

Colin Beattie

Some witnesses told the committee that there should be a definition in the bill or in the code of practice. From what you are saying, it seems that you do not think that that is the case.

John Swinney

We have the wellbeing indicators, which are very clear. What is important is that, in education and training for the exercise of responsibilities in that regard, we pay careful attention to the practice of professionals and ensure that it informs the guidance that is available to anyone who is required to exercise responsibilities in this way.

10:45

Liz Smith

I want to pick up on a fundamental dilemma that we face. The cabinet secretary was right to say that there are practitioners who believe that the wellbeing principle is flexible and allows for professional judgment. The problem arises if they are challenged on that judgment, which will probably happen more now that they have a duty to consider whether to share information. If they are challenged, they will be much less secure in the knowledge that their judgment is accurate, given the subjective nature of the SHANARRI indices. My understanding is that one of the Supreme Court’s concerns was about the subjective nature of the judgment on wellbeing, which might suit flexibility and professional judgment but will not suit the situation with the SHANARRI indices. What is coming through loud and clear is the concern among professionals that if they get legally challenged on something, the SHANARRI indices will not be adequate for defining wellbeing.

John Swinney

I do not accept that point. The SHANARRI indicators are part of the framework of consideration in which professionals exercise their responsibilities, and I do not think that anything in that framework will change as a consequence of the bill. There is obviously the question of the judgments that are arrived at by professionals in that respect. Fundamentally, though, the areas of activity that we are talking about here are ones in which professionals can judge the best way to provide support to a child or young person and their family. As a society, we rely on those professionals to make that judgment.

Liz Smith

I seek clarification on that. Do you accept that the change from the duty to share to the duty to consider whether to share adds a complexity that is part of the concern for practitioners?

John Swinney

No. The reason why we are legislating now and why we legislated in 2014 is because good practice is deployed in some but not all parts of the country. The bill gives impetus to our intention to ensure that we take a more proactive and preventative approach, so that good practice is available consistently, and more widely, across the country. That is why we legislated in the first place. Essentially, what we are completing in the current process is the framework that enables that widespread availability of good practice.

The Convener

Before I let Daniel Johnson in, Johann Lamont can come in with a supplementary question.

Johann Lamont (Glasgow) (Lab)

My question is about what the duty to consider sharing information looks like. The duty to share information has the benefit that it is simple. Someone has an obligation to share and, if they do not share, we can test whether they are responsible for the fact that they did not share. What would a duty to consider look like? How would somebody prove that they had considered whether to share? That would involve a different exercise of professional judgment. Would you expect there to be proof, such as written evidence or a log? What would the evidence look like?

John Swinney

What we envisage, which is something that we will have to discuss very carefully with our stakeholders—

Johann Lamont

Sorry, but has that not been discussed?

John Swinney

It will be part of the discussion to ensure that we have the—

Johann Lamont

Sorry, but when you decided to move from a duty to share to a duty to consider whether to share, was it not discussed what that would look like and what the implications would be for anybody who was going to exercise that duty?

John Swinney

Yes. We have discussed the nature of the change of responsibility from a duty to share to a duty to consider, although we need further discussion about what might well be a requirement to demonstrate how the duty to consider is exercised. As we go through that process, it is important that we listen carefully to stakeholders and practitioners to ensure that the duty to consider whether to share is not burdensome, that it is consistent with the exercise of professional duties and that it addresses the issues that the bill requires to be addressed.

Johann Lamont

With respect, I would have expected that work to have been done before you put the duty to consider into a bill. Whether or not the duty is doable or achievable, I would have expected you to have thought about what it might look like first, instead of introducing the duty then having the conversation later. It seems to be the wrong way round.

John Swinney

The good practice that demonstrates how professionals should consider those points already exists. It is a case of engaging with the professions to ensure that they implement the duty in a fashion that is consistent with that good practice.

Daniel Johnson (Edinburgh Southern) (Lab)

The bill does not alter the scope, nature or quality of the information that can be shared, because that is set out in the Data Protection Act 1998, which allows information to be shared on the basis of a threshold for child protection. Does the cabinet secretary agree with that assertion? If so, is it conceivable that information would ever be shared on the basis of wellbeing if it does not meet the child protection threshold that is set out in the 1998 act?

John Swinney

Unless I misunderstand the question, Mr Johnson invites me to make a distinction that cannot exist because, in all circumstances, there is an obligation on practitioners to operate within the existing legal framework on data protection.

Daniel Johnson

The reason that I ask that question is that clarity is at the heart of the matter. Clarity is important to the duty to consider sharing information, if for no other reason than that it was one of the things that the Supreme Court set out. My concern is that we are asking practitioners to consider sharing information on the basis of wellbeing, when what they are permitted to share is dictated by the child protection issues that are set out in the 1998 act. We are asking them to consider sharing information on the basis of one set of criteria, but what they are permitted to share is dictated by another set of criteria. That led Janys Scott from the Faculty of Advocates to describe the situation as “a difficult juggling act”, while Kenny Meechan described the bill as

John Swinney

The practitioner must operate within the law, which will stipulate that their actions in relation to any question of wellbeing have to be consistent with the Data Protection Act 1998. Where a child protection issue is at stake—I add this only for completeness—the 1998 act provides exceptions that allow information to be shared if there is concern that a crime has been committed. That would not, I emphasise, be available on the basis of wellbeing, because the 1998 act does not provide for that to be the case.

Daniel Johnson

Do you accept that the bill explicitly asks practitioners to consider sharing information on the basis of one set of criteria when the scope of what may be shared is set out by the Data Protection Act 1998 and successive legislation?

John Swinney

Yes.

Daniel Johnson

You said that information sharing is necessary for the role of the named person and the operation of that policy. Ross Greer asked you about alternative approaches. In the view of Janys Scott and Clan Childlaw, the policy could proceed without the information-sharing provisions on the basis that information can already be shared under existing law. Why does the cabinet secretary feel that the named fperson role cannot be put into practice if information sharing is on the basis of policy rather than legislation, which would remove that complexity altogether?

John Swinney

It is for the reason that I gave to Liz Smith a moment ago, which is that we have good practice in some parts of the country but not others. The aim of the bill is to allow us to take forward good practice to support children, young people and their families in all parts of the country. The decision to legislate on the issue was prompted by the 2014 act.

We are in a hiatus now. If we set the clock back to before 2014, we see legislation being taken forward whose purpose was to roll out good practice. We now find ourselves with some legislative uncertainty. My worry would be that if we do not complete the journey, that good practice will not be rolled out and, because of uncertainty about the legal framework, we will only have a rolling back of good practice.

Daniel Johnson

My understanding is that information sharing is but one component of the named person role. There are other parts, including liaising with families, co-ordinating with services and being a single point of contact, none of which is fundamentally undermined by the information-sharing provisions that are not being brought forward. Indeed, information sharing could still take place.

I accept that elements of the named person role might be more difficult to carry out without the information-sharing provisions, but I do not see why the role is fundamentally flawed if they are not brought forward.

John Swinney

In essence, the duty to consider information sharing requires all professionals to consider whether there is something that they need to act upon as part of the provision.

Much of the issue is tied up with our original thinking, in the run-up to the 2014 act. We were trying to ensure that more young people had access to support, because such support was not available in all parts of the country. The 2014 was intended to provide the legislative impetus to ensure that that good practice could be deployed.

We now find ourselves with, I think, a considerable amount of nervousness in the professional community on the issue. The committee and Parliament have two choices about how to address that. They can either agree to the bill and, in so doing, create legislative certainty, or they can choose not to agree to the bill and try to ensure that the practice that Mr Johnson has talked about, which is largely on a voluntary basis, prevails in Scotland.

I am concerned that, because of the legal debate that we have had and the hiatus that we are in, unless we provide legal certainty through the passage of the bill that good practice will be undermined.

Gillian Martin (Aberdeenshire East) (SNP)

You have just mentioned the nervousness among practitioners, cabinet secretary, but there is also considerable nervousness among families now that the named person legislation and information sharing have been discussed in the media and in society at large. You mentioned a public information campaign. How is that going to disseminate confidence to families and children who might have to use the named person service?

John Swinney

We will want to make sure that we adequately and effectively counter the clear unease and uncertainty that have been created as a consequence of the Supreme Court’s decision and the pause that we have had to put on the implementation of the legislation. We must take care to proactively and dispassionately set out the merits of the legislation, the services that are available and the supportive role that is envisaged. It is important that we try to ensure that members of the public—whether they are a child or a parent—are equipped with that information.

11:00

Gillian Martin

Will the code of practice be written in such a way that it will be understandable to families? They might want to read it to know how their information might be shared.

John Swinney

That must be a requirement. The code of practice will be of no value if people—whomever they happen to be—cannot understand it. Anyone with a relationship to the code of practice must be able to understand it.

Tavish Scott (Shetland Islands) (LD)

I have a couple of questions about the code of practice. First, however, I will defend Oliver Mundell. When Mr Swinney was in Opposition, he regularly demanded that lots of us resign. [Laughter.] I will pass over a few of his press releases from those days.

John Swinney

I have a very different recollection of events, Mr Scott.

Tavish Scott

Well, indeed.

Does the cabinet secretary accept that much of the evidence on the code of practice that has been laid before the committee and, I am sure, his office, reflects the fact that practitioners believe the code to be central to the provisions of the proposed legislation?

John Swinney

Yes.

Tavish Scott

Therefore, can the code be finalised prior to the finalisation of the UK Data Protection Bill?

John Swinney

Yes.

Tavish Scott

You are certain.

John Swinney

Yes.

Tavish Scott

When will that be?

John Swinney

I do not know when—

Tavish Scott

Will it be in 2018?

John Swinney

If Mr Scott will forgive me, predicting the course of the UK Government is not something that any of us can do with great confidence at the moment.

Tavish Scott

I can predict its end.

John Swinney

I am being flippant when I should not be. I accept that there may well be changes to the legislative framework. We, in this Parliament, do not have competence over all the issues that may be affected by the data protection framework. We do not have legislative competence over data protection. Therefore, if any legislative changes are made, we will have to act in a way that is—and ensure that we have guidance and a code of practice in place that are—compatible with whatever legal framework emerges.

Tavish Scott

I entirely take the point that we do not know when that will be. However, to the best of your knowledge, it will not be in the next six months, will it?

John Swinney

No, I would not think so.

Tavish Scott

No. In your letter to the committee of 6 November, you say that you will establish a practice development panel later this month. Will that panel undertake work on the code of practice, or do you envisage different consultation on the code of practice?

John Swinney

The panel will undertake work on the code of practice.

Tavish Scott

Am I right in saying that you have yet to appoint a chair or members of the panel?

John Swinney

That is correct.

Tavish Scott

When will those people be in place?

John Swinney

I will do that very swiftly.

Tavish Scott

When do you envisage the panel concluding its work?

John Swinney

The group will conclude its work in a timely fashion once the bill has completed its passage through the Scottish Parliament and after due consultation and dialogue has taken place to get us to a point at which the framework is judged to be effective and appropriate and comes forward for parliamentary scrutiny.

Tavish Scott

Is it fair to say that there is no reason why the panel could not begin its work irrespective of the stage that has been reached on the matter?

John Swinney

Assuming that the bill moves into the further stages of parliamentary scrutiny, the panel’s work can start.

Tavish Scott

I am interested in the language that you use in your letter. You say:

“The Code to be made under the Act, once passed, will quite properly start from a blank piece of paper.”

Why do you refer to a “blank piece of paper”?

John Swinney

I was trying to say that I will not oblige the panel to take the illustrative draft code of practice as its starting point.

Tavish Scott

At this stage, the committee has no sight of what the code might look like.

John Swinney

It does have sight of that, because I provided a draft illustrative code of practice. I accept that it was perhaps not the finest piece of work that the Government has ever produced, but it is there to help the committee in its deliberations.

This is exactly the dilemma that I judged would be part of these proceedings. The question that the committee has to answer is whether it supports the general principles of the bill, which envisages the creation of a code of practice. My judgment was that the committee would ask me for a code of practice to be available while it considered the bill, and that is why I provided the draft illustrative code of practice. Equally, I could have taken the view that that was for another day, later in the process. However, the committee could then have asked me the question that Mr Scott has just asked me.

The advice that I have taken is that the only way in which we can address the issues that the Supreme Court identified is by introducing the bill and following it with a code of practice that is formulated in such a fashion that it commands the confidence of practitioners, professionals, members of the public, children and families. We must do that properly.

Tavish Scott

I did not frame the question in that way, but I take your last point, that the code of practice must command confidence. We are dealing with what is, in some senses, a very narrow piece of legislation to which the code of practice is core, as you accepted in your original answer. The dilemma in which the committee finds itself is in having to give consent to a narrow principle in response to the Supreme Court’s ruling when we do not know what will be in the code. Gillian Martin made a fair point in saying that the code must appeal to families. The code that we have seen might appeal to lawyers, but it certainly does not appeal to families.

John Swinney

Fundamentally, the question that Mr Scott put to me was answered by the commitment that I gave at the outset, that Parliament will have the final say on the contents of the code.

Tavish Scott

That is another way of looking at it, but that is—

John Swinney

I am sorry, but I think that that is a significant way of looking at it. The committee is not being asked to sign up to the code of practice today, nor is Parliament.

Tavish Scott

No, indeed.

John Swinney

The committee is being asked to sign up to the general principles of the bill.

Because I have listened to the committee’s evidence, I have conceded, in a change to the proposition, that Parliament will have the final say, through a vote, on the contents of the code of practice. The provisions of the bill already envisaged that I would lay a draft code of practice in Parliament, that the code of practice would be available for consultation in Parliament for 40 days and that I would have to take account of any comments on the draft code that were expressed by Parliament within that 40-day period. I now propose to amend the bill to include another stage in that process whereby the code will come back to Parliament for it to decide—it will not be me who decides; it will be Parliament—whether it is acceptable. That is a huge change in the position.

Tavish Scott

Sure. However, the absolute opposite view to that is that the code of practice is core to the bill—as, I think, we have agreed—so it must therefore be the fundamental starting point for how the committee considers the bill. I totally accept that you have moved and have suggested new ways for Parliament to deal with the code, which could be welcomed by those who see the parliamentary process as the right process. Nevertheless, despite all that you have just said about that, the fundamental issue for the committee is that we do not have a code. You are asking us to approve the bill without a code.

John Swinney

I am not asking you to approve the code.

Tavish Scott

You will at a later stage.

John Swinney

At a later stage, Parliament will have the opportunity to accept or reject the code. The code is not new law. I went through that point in detail with the Delegated Powers and Law Reform Committee. It is not new law; it is explanatory information, and Parliament will be the judge of whether it is satisfactory.

Under no circumstances is the committee being asked to approve a code at this stage; it is being asked to approve the general principles of the bill, which requires us to produce a code. That code is already subject to significant parliamentary scrutiny, and I have just accepted another layer of scrutiny whereby Parliament will have a veto over the decision to accept the code.

Tavish Scott

Yes, but the principles are nothing without the code, are they?

John Swinney

The code cannot happen unless Parliament votes for it.

Tavish Scott

We are going round in circles. That is as much my fault as anyone else’s.

I have one final question. I will quote the Royal College of Nursing Scotland, which I presume sent the same email to all of us overnight. It is important to note that the RCN supports the principles of the bill but does not support the bill as introduced, because it does not consider it to be the answer to the question. The RCN specifically says that the duty to consider sharing information

“may undermine the principles of GIRFEC by resulting in defensive practice.”

The committee is pretty hot on practitioners, because the evidence has been powerful. Does the cabinet secretary accept that concern? If so, what is the answer to it?

John Swinney

The answer is that there will be a variety of different opinions, because the committee has had letters from a variety of organisations that are involved in this area of policy, including the Aberlour Child Care Trust, Children in Scotland, Crossreach, Includem, Children’s Health Scotland, Social Work Scotland, One Parent Families Scotland, Enable Scotland and the Convention of Scottish Local Authorities.

Tavish Scott

I agree with all of that, Mr Swinney, but I am talking about the RCN specifically.

John Swinney

In the field of health, the Nursing and Midwifery Council has said:

“We can currently see no conflict between the draft legislation proposed and our own regulatory approaches, notably our Code.”

The Royal College of General Practitioners has said:

“We welcome the amended wording of the Bill, as it meets our concerns regarding the threat to doctor-patient confidentiality contained in the original Bill”.

The General Medical Council has said:

“We warmly welcome the proposed move away from creating a mandatory duty to share information about children and young people with a Named Person.”

Those issues are the subject of discussion and debate among organisations. If Mr Scott is looking for evidence there is plenty of evidence of organisations that are saying—

Tavish Scott

Is the RCN wrong, then?

John Swinney

The RCN has its opinions and is entitled to express them. As Mr Scott knows, I simply marshal the evidence of different opinions for the committee to judge.

The Convener

Daniel Johnson wants to ask a brief question.

Daniel Johnson

I want to clarify something about the status of the code of practice. I hear what the cabinet secretary is saying. Will those provisions be subject to parliamentary scrutiny in the bill, and will that apply to future changes to the code of practice, or will they have the status of secondary legislation?

John Swinney

Section 1(4) of the bill introduces new section 26B of the 2014 act. New section 26B(6), states:

“The Scottish Ministers must lay before the Scottish Parliament a draft of a code of practice they propose to issue.”

New section 26B(7) states:

“The Scottish Ministers must not issue the code of practice until after the expiry of the period of 40 days beginning with the day on which the draft code was laid before the Parliament.”

New section 26B(8) states:

“The Scottish Ministers must, in the code of practice they issue, take account of any comments on the draft code expressed by the Parliament within that period.”

Those three new subsections are already in the bill. If the committee approves the principles of the bill at stage 1, I will lodge for the committee’s consideration a stage 2 amendment that will apply an additional provision, which will say that the code of practice cannot be put in place until Parliament has agreed to that. If we were to bring forward any subsequent code of practice—to take account of changes in data protection legislation, for example—we would have to go through the same process.

The code will not have the status of secondary legislation because it is not legislation; it is explanatory information. I am trying to address what I clearly detect is a parliamentary concern about how the guidance can command sufficient authority and confidence in Parliament by enabling that proposal to be considered by Parliament and by giving Parliament, rather than me, the final say.

11:15

Oliver Mundell

I understand that the Scottish Government has been engaging with a number of outside organisations about the draft code of practice and some of the changes that are set out in the cabinet secretary’s letter. On parliamentary scrutiny, the committee has spent a long time taking evidence from various organisations, some of which have given evidence based on something that is now no longer as central to our consideration of the bill. How does the cabinet secretary expect the committee to scrutinise what I see as a sort of shadow consultation with a set group of organisations?

John Swinney

The committee will make its judgments based on what it hears.

Oliver Mundell

Will the Scottish Government share any more detailed information about the discussions that it has had and the concerns that it has heard from some of those organisations, including those that have written a letter to revise their position from that which they submitted at the start of the committee’s evidence taking?

John Swinney

I set out a fair summary of all those issues in the letter that I sent to the convener on Monday.

Oliver Mundell

How many organisations did the Scottish Government meet ahead of the committee taking evidence but after they had submitted written evidence to the committee?

John Swinney

We meet organisations constantly. I see them and talk about these issues constantly, and I have volunteered to the committee the information that I have listened to and heard the evidence. I have watched every week of the committee’s proceedings. I am alert to the concerns that have been expressed, and they have been addressed openly.

I have come to the committee and accepted that there have been elements of the steps that we have taken that we have not got right. Mr Mundell asked me earlier about my accountability. I have come here and said that I made a judgment. I said to my officials that we are going to have to put a draft illustrative code of practice into the bill. It was not part of our original plan, so that is not what the committee was asked to judge. The committee was asked to judge whether we should have a duty to consider sharing information and whether we should have a code of practice. I decided to add that in during the proceedings. We could not undertake the consultation, and I have accepted that we did not get that right.

I am not hiding anything from the committee. The committee has heard the evidence and I have listened carefully to it. I addressed the issues in an open, published letter to the convener of the committee on Monday, and I am here to answer questions about it.

Oliver Mundell

Do you accept that some people who gave written evidence to the committee changed their oral evidence on the basis of reassurances that they received in private from the Scottish Government that the committee was not aware of when it took that oral evidence?

John Swinney

The world moves on. I wrote a letter to the committee on Monday that sums up the changes that I am making to the approach in light of the feedback that I have had from individuals. There was nothing private about it. I sent a published letter to the committee and I am sitting here in a televised meeting that can be seen by anyone around the world to explain what I have done. There is no secret information. I have simply listened to the evidence that the committee has taken and realised that we have some difficult issues to address, and I am addressing them openly in front of the committee.

The Convener

This will be your final question, Oliver.

Oliver Mundell

You potentially shared the Scottish Government’s intentions for the future of the bill with some organisations that were giving evidence to the committee before they appeared at the committee. Could that have affected the evidence that they gave?

John Swinney

I do not actually think that that is the case, Mr Mundell. I would have to look at all the dates.

There is a logical inconsistency in Mr Mundell’s point. I have listened to the evidence that has come to the committee. I have seen organisations come here and express their concerns. I have then gone away and had various discussions with people so that I can better understand their perspective, and I have formulated a letter to the committee. I sent that letter and it has been published, and now I am here before the committee to give evidence and be answerable.

We work with and are in dialogue with organisations all the time, but I do not think that I shared my private thinking with anyone before they gave evidence. I am here to give evidence today, and I set out my position to the committee on Monday.

Ross Greer

Forgive me if this is a naive question; the issue came up during a recent visit to a group of practitioners and I told them that I would raise it. The practitioners were concerned that, because the code’s primary purpose is to ensure legal compliance, it might never be possible to shape it into a document that they will find accessible and usable. They mooted that the code should in essence be directed not at the practitioners but at their legal representatives—the local authority legal services department and so on—and that the practice guidance should be directed to the practitioner. Is that possible?

John Swinney

If I understand you correctly, you are asking whether it is desirable for the code of practice to be addressed to the legal representatives and the guidance to be addressed to practitioners. Is that right?

Ross Greer

Yes. As it stands, the code of practice is for practitioners, but the practitioners’ concern is that it might not be fashioned in such a way that they will find it usable and that, perhaps, if it is not directed at them—

John Swinney

It has to be usable by practitioners. That is the challenge. We must make sure that we get it right, as part of our dialogue with them.

The Convener

Ross Greer’s point touches on something that Liz Smith talked about. Is the issue partly that individuals fear being held legally responsible? Is it that practitioners want to ensure that the body is held responsible and not the individual?

John Swinney

Let me provide a little clarity on the point. The code of practice has to be available to and usable by anyone who is exercising the responsibilities that we are talking about. We have to get it into a shape and character that enables that to be the case.

The legal responsibility for any decision or approach that is taken falls on the organisation, not the individual. The legal position on that is crystal clear.

Daniel Johnson

Janys Scott said on that very point that the code of practice will balance such complicated legal points that she could not conceive of it being straightforward. Do you accept that? How will you seek to resolve the complex legal points in the code of practice?

John Swinney

We have to articulate it in such a way that it will be usable by practitioners in the services that operate in this context. We have to get the necessary input to ensure that the document is usable by practitioners.

Daniel Johnson

Was Janys Scott wrong to question the possibility of that?

John Swinney

Well, that is her opinion.

Tavish Scott

In relation to schools, cabinet secretary, you are saying that it will be not the headteacher but the local authority that is legally responsible in this context.

John Swinney

Correct.

Tavish Scott

And the governance reforms that you published yesterday will make no difference to that.

John Swinney

Correct.

Tavish Scott

Thank you.

Clare Haughey (Rutherglen) (SNP)

Cabinet secretary, you will be aware from the evidence that we have heard from practitioners and professional bodies that there is significant concern about staff and practitioners having time to receive the correct training to enable them to implement the named person approach. That certainly came through at our focus groups last week.

I am pleased that you said that there will be additional funding—I think you used the expression “further financial resources”. Will you expand on that? What will be available to organisations so that they can roll out training, particularly in relation to parts 4 and 5 of the 2014 act?

John Swinney

We made provision in the 2014 act for funding to be available, and funding was distributed to relevant local authorities and public bodies to support the necessary training and equipping of professionals to take forward their responsibilities.

I want to ensure that we adequately address the issues of resourcing that have been raised by different bodies. As we take the bill forward, my plan is to work with stakeholders to identify how the provision of such support can be put in place to address those issues. At later stages of the bill, I will make specific provisions on that available to the committee.

Clare Haughey

Will the panel that you are convening have some input to that training, assuming that some of it will be different from what was originally rolled out?

John Swinney

Yes. I want to ensure that the panel can shape that agenda.

Clare Haughey

Can I assume, then, that some of the organisations that have raised that concern will be part of that panel?

John Swinney

Yes, they will be.

Clare Haughey

Another issue that was raised with us was about people and organisations that are not named persons but will feed information in to named persons. Is there some provision for training for those people and organisations?

John Swinney

Yes. We will also take forward wider awareness-raising approaches to ensure that there is a wider understanding of the role of the named person and how individuals can contribute to the valuable work that named persons will represent.

The Convener

Liz Smith has a supplementary question.

Liz Smith

Mr Swinney, on training, you have acknowledged in your letter and again this morning that there will be an increased cost. Can you give us an idea of what that cost will be?

John Swinney

I cannot do that at this stage because I want to have a dialogue with stakeholders to ensure that I can address the issues properly. I will take that forward during the passage of the bill to ensure that I can adequately assess what is required and be in a position to give Parliament clarity on that.

Gillian Martin

I have some questions on the training that happened before the Supreme Court judgment, when local authorities thought that the scheme was going ahead. Was funding given for training at that point? What happened to that funding as a result of the hiatus that we have had?

John Swinney

If my memory serves me right, we distributed just over £10 million to local authorities. As with all such funding, it was distributed to local authorities and that is where it remains.

Gillian Martin

Some local authorities will have already put training in place and some will not. I imagine that the picture varies across the local authorities.

John Swinney

Yes.

Gillian Martin

Are you getting any feedback from those local authorities that carried out training a few years ago that there is a need for more training? They may have spent some of the training budget already because they thought that the scheme was coming in, and now they will have to redo that training.

John Swinney

All local authorities confirmed to us after the passage of the bill that became the 2014 act that they were ready for implementation. We had a commencement date of August 2016, and the training activities of local authorities were taken forward in that context. The evidence has indicated that there is a desire and a need for further training and support, and that is what I want to discuss with stakeholders to ensure that we can adequately address that.

Gillian Martin

I have one further question, which goes back to the duty to consider sharing information and any documentation that might be required as a result. Are you taking into account that there might be an increased workload for certain practitioners as a result of the decisions on that? How has that been addressed?

John Swinney

When I look at the exercise of responsibilities by public servants at the local level, I see that many public servants operate in the space where they assess and consider the needs of individuals and how they can most effectively support them. Much of that existing practice goes on among teachers, who consider the wellbeing of children in their care, and health visitors. We have substantially expanded the number of health visitors in Scotland and further expansion is under way. A lot of that activity is already being undertaken.

The bill envisages the duty to consider sharing information being applied on a more widespread basis, and that will change the nature and character of some of the work that is being done. It also has to be borne in mind that, where the practice has been rolled out, it has resulted in a reduction in case load because of the proactive work that has been undertaken to achieve the objective of the named person policy—that is, to avoid more complex cases arising because earlier intervention has prevented that need from crystallising.

11:30

Johann Lamont

It strikes me, in this conversation and in all the evidence that we have taken, how far away this feels from the real world and the young people we want to support. I am sure that you share that concern.

Can you guarantee that resources will not be removed from providing for young people and children in order to fund training?

John Swinney

Yes.

I share the concern that Johann Lamont raised at the start of her question. In one of his questions, Mr Scott referred to the difficulty with this bill being that we are having to address a very narrow, albeit important point because of the issues raised by the Supreme Court judgment. However narrow it is, the point is critical to enabling us to pursue the larger agenda, which is about supporting the wellbeing of children and young people in our communities. The bill is a challenge because the committee has to scrutinise this very narrow point in order that the larger picture can be taken into account.

Johann Lamont

My concern is that the committee will have to judge whether the legislation makes the situation better or worse for young people. It also strikes me that the evidence, to which you have obviously paid a lot of attention, lacks a ringing endorsement of the legislation. The evidence has not even included your position, which is that the legislation is absolutely necessary in order to protect young people. In fact, many of the practitioners have said that it is what they do anyway, so the legislation is unnecessary, and they predicate their support for the bill on the quality of the code of practice.

At best there are people who are committed to the named person scheme and to GIRFEC who say that they can make the legislation work. You have already mentioned the letter that the committee received from a group of charities, which was interesting and very useful to us. We were grateful for it because it outlined their support for the need for a duty to consider sharing information. I do not want to misrepresent what the letter said, because clearly the overall conclusion was that we should support the bill, but I will read out one paragraph:

“We recognise that significant concerns remain. At this stage, we are prepared to work with the Scottish Government with the aim of producing a Bill and Code that can be supported by the majority of the children’s sector and, ultimately, the Scottish Parliament. Our current support is contingent on the Scottish Government working effectively with the sector to produce revised measures that address the concerns expressed to date, satisfactorily.”

The committee is now in the position that it is expected to support a bill that has only conditional support from its strongest advocates, who, in that letter, contemplate the possibility that it will not succeed. Do you accept that that is a dilemma for the committee? In fact, the letter appears to me to suggest that those organisations want to work with you from a base point of asking how we can make the policy work, rather than saying that the bill should be passed and then they will see how we can make the best of it.

John Swinney

My response to that has to be set within the context of the wider position of every one of those organisations, which is that they want to see the named person provision put into practice and take effect. Some of their experience, in some parts of the country, is of that provision already working, voluntarily, while in other parts of the country it is not—hence the need for legislative impetus to put the provision in place.

None of those organisations is casting any doubt on the importance of having named person provision, which is the legislation that is already on the statute book. However, for that to commence and have its potential realised, the bill that is before the committee needs to be passed.

Johann Lamont

With respect, that is not what they say.

John Swinney

Convener, may I please complete my point? I am not interpreting what the signatories of that letter are saying; I am purely and simply making a factual point to the committee that the named person provision cannot be commenced on the basis envisaged by the 2014 act unless this bill is passed.

I have accepted that there is a job of work to be undertaken on the code of practice, as my exchange with Mr Scott helped to clarify significantly, and whether that is enacted will ultimately depend upon a parliamentary decision. I have put much more involvement and participation for Parliament into the process than was originally envisaged in the bill. That is a crucial part of the approach that I am taking.

My final point about the letter from the organisations is that they support the concept of the process that the Government is undertaking, but they want to be immersed in ensuring that it takes the correct course and I have committed the Government to that.

Johann Lamont

With respect, cabinet secretary, they say more than that. They say that their “support is contingent” on the successful conclusion of that work, which is a very different thing. They are contemplating the possibility that the legislation may not work. We know that they support the named person scheme and seek to continue to support it. If they believed that the bill was required in order to deliver it, they would say that, but they do not. They say that their support for it is contingent upon an effective outcome. The committee is being asked to support a bill without knowing that that outcome is guaranteed. I am sure that you will accept that that is a major problem.

On the question of unintended consequences of the legislation, a very significant amount of evidence—not from everybody, I appreciate; some people said that they would do their best to make it work—was from people who felt that defensive practice would develop. I understand that other people have said that it has already developed because of the uncertainty. Do you share my concern that a consequence of the legislation may be that people begin to practise even more defensively than they have in the past, to the detriment of our shared commitment to the safety of our young people?

John Swinney

The events that were associated with the Supreme Court challenge have created a very difficult set of circumstances for practitioners—circumstances that we did not want to see. The letter from the group of organisations makes it quite clear that the legal uncertainty is creating some of that risk-averse practice. We have to make a judgment about how to resolve that issue, because I am at one with Johann Lamont in wanting to see clear process and practice in place to support the wellbeing of children in our society.

If we want to reach the destination identified by Johann Lamont, we have to wrestle with the best way to do that in the light of where we find ourselves in the aftermath of the Supreme Court judgment. Will our ability to get to that destination be aided or hindered by the passage of the bill?

In my view, it will be aided by the passage of the bill because we will be able to put in place the legal clarity that will enable good practice to be undertaken safely within the law and within the parameters of good guidance.

If we do not pass the bill, the concept of the named person will go into hiatus. As a consequence of that, the opportunity to support the enhancement of the wellbeing of young people in Scotland will be diminished.

Johann Lamont

That is your view, but it is not a view that everybody shares. Do you accept that a significant number of people in the legal profession do not accept that there is legal clarity in the matter, and think that there are significant problems with it?

John Swinney

The committee has heard different legal opinions. Johann Lamont is absolutely right; what I have just expressed is my opinion. I have given my opinion to Parliament and the committee can consider it; that is the process.

Ultimately, the committee will also want to consider on what basis I would come to the committee with a bill. What will I have gone through to make sure that the bill is robust enough to meet the needs of the legislation? I have gone through the necessary process to get to this point. In that context, the bill helps us to provide legal clarity, although I accept that there will always be legal debate about some of the provisions.

There is legal debate about provisions in bills that the Parliament has passed. They have been tested in court and, on a number of occasions, the courts have rejected them, while on other occasions, they have supported them. This is not a new concept.

Johann Lamont

No, it is not unique. As I understand it, the main thing that the Government has done to address the concerns of the Supreme Court is move from a duty to share information to a duty to consider sharing information. Can you confirm again that you have not had a conversation with stakeholders about what the duty to consider sharing information would mean for the individual practitioner and for the local authority or organisation that employs them, and whether it would be workable? That is a pretty fundamental point.

John Swinney

We went through that process during the latter part of 2016 when we discussed how to respond to the judgment, and we arrived at the duty to consider sharing information. We have discussed that with the national implementation group and our stakeholder forums. I want to make sure that stakeholders have the opportunity to shape what that looks like in reporting or process terms. We need to give adequate space for stakeholders to inform the practice.

Johann Lamont

Going from a duty to share to a duty to consider sharing information is a pretty fundamental way of dealing with the problem. Surely, in deciding on that move, you would test the practicality and the implications of such a duty. Would you have to write down your considered view and give evidence for what you had considered and rejected? What implications would that have for a practitioner in terms of defensive practice? It cannot be that you decided to have a duty to consider sharing information without testing what that would mean in the real world and what the implications for individual members of staff or practitioners would be.

John Swinney

Our position on your final point is crystal clear. The responsibility rests with the organisations involved. There will be issues of professional practice that will affect many professionals that will be the subject of on-going discussion on a variety of grounds, not only about the named person.

We have discussed the approach of having a duty to consider sharing information as being the approach that enables us to address the question of proportionality that the Supreme Court raised in its judgment, and we have applied that approach to the legislation. I am simply saying that I want to make sure that stakeholders are fully involved as we finalise the detail of how that is undertaken.

11:45

Johann Lamont

But you have not road tested the impact of the duty to consider sharing information on the individuals who would have to do it. Do you accept that there will be an impact on an individual, given the context of the bridge between wellbeing and child protection? In the past there has been a problem; people have not supported the policy when we would have expected them to, so it is about individual practice. There would be an implication for people—a professional expectation on them to behave in a particular way. The duty to consider sharing information is significant and it is not just about local authorities and charitable organisations. It will involve individual professionals and, therefore, the legislation will stand or fall by the capacity for that duty to consider sharing information to be deliverable without them using defensive practice.

John Swinney

Good decision making by professionals already relies on proper and effective recording of information; it is an essential part of all judgments that are applied by professionals. I am making the simple point that I do not want to finalise the details of the reporting arrangements until such time as professionals have the opportunity to shape them, as part of the on-going process. Johann Lamont will know from her extensive experience in this area of activity that the good recording of information to support good-quality decision making is an essential component of the process.

Johann Lamont

There is an issue about resources. We accept that you have made more resources available and that there will be a judgment about whether that goes to children’s organisations, which is where you would focus them if you had the choice.

I will make one last point, which is not a partisan point and I make it quite seriously. One of the problems with the named person policy has been the way in which it has been represented—the lack of confidence in it and the lack of understanding of its purpose, even by its strongest advocates. You say that you will have a national campaign. Have you looked at the idea of having a national campaign that is not conducted by the Scottish Government, given that people who do not support the policy have no confidence in what the Scottish Government has done? I am not casting aspersions on the Government, which I think has in large part sought to deliver the named person policy from the best of intentions, but that lack of confidence will surely not be addressed through a national awareness campaign led by the Scottish Government. Have you looked at other options for how that might be done?

John Swinney

I am certainly prepared to do so, because Johann Lamont’s point may have some real substance. It may be that the best way to address the issue is to take that into a different sphere and find a different way of going about it. I will certainly give active consideration to that point.

The Convener

A number of witnesses shared some of Johann Lamont’s concerns about the responsibility that could be laid on them in judging the difference between wellbeing and child protection, but the concern seemed to be more that they were not sure that the local authority, health board or other organisation that was legally responsible would be held responsible. They said that if they were given those guarantees some of their problems would disappear. Will strict guarantees be given to individuals that they will be held responsible in a way that might lead to a legal case only if they have done something that is criminally wrong, as is the case just now, without the named person scheme?

John Swinney

Section 19(8) of the 2014 act says:

“Responsibility for the exercise of the named person functions lies with the service provider rather than the named person.”

There is protection in law—in existing statute—which would be commenced with these provisions. That is in the 2014 act.

The Convener

Do you consider that the practitioners will, in most cases, be able to continue to use informed consent as a basis for sharing wellbeing information?